Legislature(2001 - 2002)
04/09/2001 01:18 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 9, 2001
1:18 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Scott Ogan, Vice Chair (via teleconference)
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Albert Kookesh
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 103(FIN)
"An Act relating to election campaigns and legislative ethics."
- MOVED HCS CSSB 103(JUD) OUT OF COMMITTEE; ADOPTED A HOUSE
CONCURRENT RESOLUTION ALLOWING THE TITLE CHANGE
HOUSE BILL NO. 210
"An Act relating to sexual assault and sexual abuse of a minor."
- MOVED CSHB 210(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 187
"An Act relating to the destruction, desecration, and vandalism
of cemeteries and graves."
- MOVED CSHB 187(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 196
"An Act establishing a right of action for a legal separation;
and amending Rule 42(a), Alaska Rules of Civil Procedure."
- SCHEDULED BUT NOT HEARD
CS FOR SENATE BILL NO. 82(STA)
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 67
"An Act requiring proof of motor vehicle insurance in order to
register a motor vehicle; and relating to motor vehicle
liability insurance for taxicabs."
- BILL HEARING POSTPONED
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 68
"An Act relating to civil liability for transporting an
intoxicated person or for driving an intoxicated person's motor
vehicle; and providing for an effective date."
- BILL HEARING POSTPONED
CS FOR SENATE BILL NO. 105(FIN)
"An Act relating to victims' rights; relating to establishing an
office of victims' rights; relating to the authority of
litigants and the court to comment on the crime victim's choice
to appear or testify in a criminal case; relating to
compensation of victims of violent crimes; relating to
eligibility for a permanent fund dividend for persons convicted
of and incarcerated for certain offenses; relating to notice of
appropriations concerning victims' rights; amending Rules 16 and
30, Alaska Rules of Criminal Procedure, Rule 9, Alaska
Delinquency Rules, and Rule 501, Alaska Rules of Evidence; and
providing for an effective date."
- BILL HEARING POSTPONED
HOUSE BILL NO. 133
"An Act relating to restitution for criminal and delinquency
acts; authorizing the state to collect restitution on behalf of
victims of crime and delinquent acts and the release of certain
information related to that collection; relating to the
forfeiture of certain cash and other security for payment of
other restitution; relating to access by the Violent Crimes
Compensation Board to certain records regarding delinquency acts
to award compensation to victims; relating to immunity for
damages related to certain collections of restitution; amending
Rule 82, Alaska Rules of Civil Procedure; and providing for an
effective date."
- BILL HEARING POSTPONED
HOUSE BILL NO. 134
"An Act relating to the rights of crime victims, the crime of
violating a protective injunction, mitigating factors in
sentencing for an offense, and the return of certain seized
property to victims; clarifying that a violation of certain
protective orders is contempt of the authority of the court;
expanding the scope of the prohibition of compromise based on
civil remedy of misdemeanor crimes involving domestic violence;
providing for protective relief for victims of stalking that is
not domestic violence and for the crime of violating an order
for that relief; providing for continuing education regarding
domestic violence for certain persons appointed by the court;
making certain conforming amendments; amending Rules 65.1 and
100(a), Alaska Rules of Civil Procedure; amending Rules 10, 11,
13, 16, and 17, Alaska District Court Rules of Civil Procedure;
and amending Rule 9, Alaska Rules of Administration."
- BILL HEARING POSTPONED
PREVIOUS ACTION
BILL: SB 103
SHORT TITLE:ELECTION CAMPAIGNS AND LEGISLATIVE ETHICS
SPONSOR(S): STATE AFFAIRS
Jrn-Date Jrn-Page Action
02/20/01 0432 (S) READ THE FIRST TIME -
REFERRALS
02/20/01 0432 (S) STA, JUD
02/22/01 (S) STA AT 3:30 PM BELTZ 211
02/22/01 (S) Heard & Held
02/22/01 (S) MINUTE(STA)
02/27/01 (S) STA AT 3:30 PM BELTZ 211
02/27/01 (S) Moved CS(STA) Out of
Committee
02/27/01 (S) MINUTE(STA)
02/28/01 0534 (S) STA RPT CS 2DP 3NR NEW TITLE
02/28/01 0534 (S) DP: THERRIAULT, HALFORD; NR:
PHILLIPS,
02/28/01 0534 (S) PEARCE, DAVIS
02/28/01 0534 (S) FN1: (ADM)
03/09/01 (S) JUD AT 1:30 PM BELTZ 211
03/12/01 (S) JUD AT 1:30 PM BELTZ 211
03/12/01 (S) Moved CS(JUD) Out of
Committee
MINUTE(JUD)
03/13/01 0634 (S) JUD RPT CS 2DP 1DNP 1NR NEW
TITLE
03/13/01 0635 (S) DP: TAYLOR, COWDERY; DNP:
ELLIS
03/13/01 0635 (S) NR: THERRIAULT
03/13/01 0635 (S) FN1: (ADM)
03/13/01 0635 (S) FIN REFERRAL ADDED AFTER JUD
03/22/01 (S) FIN AT 9:00 AM SENATE FINANCE
532
03/22/01 (S) MINUTE(FIN)
03/23/01 0783 (S) FIN RPT CS 3DP 2NR NEW TITLE
03/23/01 0783 (S) DP: DONLEY, KELLY, LEMAN;
03/23/01 0783 (S) NR: HOFFMAN, OLSON
03/23/01 0783 (S) FN2: (ADM)
03/23/01 (S) FIN AT 9:00 AM SENATE FINANCE
532
03/23/01 (S) MINUTE(FIN)
03/28/01 (S) RLS AT 10:45 AM FAHRENKAMP
203
03/28/01 (S) MINUTE(RLS)
03/29/01 0858 (S) RULES TO CALENDAR 2OR 3/29/01
03/29/01 0863 (S) READ THE SECOND TIME
03/29/01 0863 (S) FIN CS ADOPTED UNAN CONSENT
03/29/01 0863 (S) ADVANCED TO THIRD READING
UNAN CONSENT
03/29/01 0863 (S) READ THE THIRD TIME CSSB
103(FIN)
03/29/01 0864 (S) PASSED Y17 N2 A1
03/29/01 0867 (S) TRANSMITTED TO (H)
03/29/01 0867 (S) VERSION: CSSB 103(FIN)
03/30/01 0782 (H) READ THE FIRST TIME -
REFERRALS
03/30/01 0782 (H) STA, JUD, FIN
04/03/01 0825 (H) STA RPT 4DP 2DNP 1NR
04/03/01 0825 (H) DP: WILSON, FATE, JAMES,
COGHILL;
04/03/01 0826 (H) DNP: CRAWFORD, HAYES; NR:
STEVENS
04/03/01 0826 (H) FN2: (ADM)
04/03/01 (H) STA AT 8:00 AM CAPITOL 102
04/03/01 (H) Moved Out of Committee
04/03/01 (H) MINUTE(STA)
04/09/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 210
SHORT TITLE:STAT. OF LIMITATIONS:SEXUAL ASSAULT/ABUSE
SPONSOR(S): REPRESENTATIVE(S)MEYER
Jrn-Date Jrn-Page Action
03/23/01 0706 (H) READ THE FIRST TIME -
REFERRALS
03/23/01 0706 (H) JUD, FIN
04/09/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 187
SHORT TITLE:VANDALISM OF CEMETERIES & GRAVES
SPONSOR(S): REPRESENTATIVE(S)WHITAKER
Jrn-Date Jrn-Page Action
03/15/01 0609 (H) READ THE FIRST TIME -
REFERRALS
03/15/01 0609 (H) JUD, FIN
04/04/01 0848 (H) COSPONSOR(S): WILSON
04/09/01 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JOE BALASH, Staff
to Senator Gene Therriault
Senate State Affairs Standing Committee
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
POSITION STATEMENT: Presented SB 103 on behalf of the Senate
State Affairs Standing Committee and answered questions.
BROOKE MILES, Executive Director
Alaska Public Offices Commission
2221 East Northern Lights, Room 128
Anchorage, Alaska 99508-4149
POSITION STATEMENT: Answered questions on SB 103.
SUSIE BARNETT, Ethics Committee Administrator
Select Committee on Legislative Ethics
Legislative Agencies and Offices
PO Box 101468
Anchorage, Alaska 99510-1468
POSITION STATEMENT: During discussion of SB 103, answered
questions related to disclosure.
KAREN BITZER, Executive Director
Standing Together Against Rape (STAR)
1057 West Fireweed
Anchorage, Alaska 99503
POSITION STATEMENT: Testified in support of HB 210 and answered
questions.
TRISHA GENTLE, Executive Director
Council on Domestic Violence & Sexual Assault
PO Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Testified in support of HB 210.
BLAIR McCUNE, Deputy Director
Public Defender Agency (PDA)
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
POSITION STATEMENT: Testified in opposition to HB 210 and
expressed concern about the difficulty in defending a case that
is over ten years old. During discussion of HB 187, brought up
the concern that youths should not have to have a class C felony
on their records.
JERRY LUCKHAUPT, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
Terry Miller Building, Room 329
Juneau, Alaska 99801-1182
POSITION STATEMENT: Speaking as the drafter, answered questions
on HB 210 and proposed amendments.
LORI L. BACKES, Staff
to Representative Jim Whitaker
Alaska State Legislature
Capitol Building, Room 411
Juneau, Alaska 99801
POSITION STATEMENT: Presented HB 187 on behalf of
Representative Whitaker and answered questions.
ROBERT SAM, Cemetery Caretaker
PO Box 6113
Sitka, Alaska 99835
POSITION STATEMENT: Testified in support of HB 187 and answered
questions.
ELMER MAKUA, Cemetery Caretaker
Tongass Tribe
1042 Woodland Avenue
Ketchikan, Alaska 99901
POSITION STATEMENT: Testified in support of HB 187.
DAVID JACOBY, Public Works Director
City of Fairbanks
2121 Peger Road
Fairbanks, Alaska 99709
POSITION STATEMENT: Testified in support of HB 187.
WENDY REDMAN, Vice President for University Relations
University of Alaska
PO Box 755000
Fairbanks, Alaska 99775
POSITION STATEMENT: During discussion on HB 178, answered
questions related to proposed Amendment 1.
ACTION NARRATIVE
TAPE 01-59, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:18 p.m. Representatives
Rokeberg, Ogan (via teleconference), James, Coghill, Meyer, and
Berkowitz were present at the call to order.
SB 103 - ELECTION CAMPAIGNS AND LEGISLATIVE ETHICS
Number 0160
CHAIR ROKEBERG announced that the first order of business would
be CS FOR SENATE BILL NO. 103(FIN), "An Act relating to election
campaigns and legislative ethics."
Number 0185
JOE BALASH, Staff to Senator Gene Therriault, Senate State
Affairs Standing Committee, Alaska State Legislature, presented
SB 103 on behalf of the sponsor, the Senate State Affairs
Standing Committee. Mr. Balash explained that SB 103 is largely
a "cleanup bill" to address a couple of conflicts and "gray
areas" in the Alaska Public Offices Commission (APOC) and
legislative ethics statutes. He said that the APOC section of
SB 103 further defines and clarifies that a single candidate can
control multiple groups, but that a collection of groups is
subject to the same limitations on contributions that would
apply to one group. He added that SB 103 makes some changes to
the public office expense term (POET) account and POET reserve
mechanism, which is eliminated, leaving just the single POET
account; transitional language is included to facilitate this
change. He also explained that under SB 103, the amount of
personal property that's allowed to be carried forward is
increased, and the types of property that are allowed to be
carried forward are addressed.
MR. BALASH further explained that contribution definitions are
modified, particularly in the areas of exclusions, professional
services, mass mailings by parties, certain poll results, and
newsletters to constituents. With regard to the ethics portions
of SB 103, he said that the ethics statute breaks down in two
places: use of public assets for non-legislative purposes, and
use of public assets for political purposes. Under the non-
legislative purposes portion, allowances are made for seasonal
greeting cards to be prepared and mailed out by legislative
staff; transportation of personal computers used primarily for
state business; use of photographs; reasonable use of the
Internet; solicitation and acceptance of donations for
nonpolitical charities; and newsletters on any subject. In
addition, the use of offices before and after session is
extended to ten days at either end. Under the political
purposes portion, allowances are made for legislators to use
their photographs and to support or oppose constitutional
amendments, although there is a limitation on the use of
legislative offices and staff for solicitation of contributions
regarding the amendment; it also addresses the use of Juneau
legislative offices and provides for an exception to the gift of
transportation from one legislator to another.
Number 0443
REPRESENTATIVE BERKOWITZ asked whether the change regarding
candidates' registering of multiple groups is necessary.
MR. BALASH responded that the APOC currently treats multiple
groups in this manner, and the legislation is simply codifying
that interpretation. As to the necessity of this change, he
said it is up to the legislators' preference whether to include
it.
CHAIR ROKEBERG, with regard to the elimination of the POET
reserve account, asked whether the amounts would stay the same.
MR. BALASH confirmed that the amounts would stay the same.
CHAIR ROKEBERG said:
Right now, ... a House member can receive $10,000 of
campaign funds, then has to disburse it to a reserve
and an operating account - ... [though] only $5,000
per annum - so that's why the reserve account was
established. So, this bill does away with that so we
only have to have one account over a two-year cycle.
Is that [correct]?
MR. BALASH said that is correct. He added that all of the
reporting requirements are still in place as to how the funds
are used and accounted for, as are the limitations on use of the
funds.
REPRESENTATIVE BERKOWITZ asked for clarification on the types of
accounts and the amounts allowed as addressed by SB 103.
REPRESENTATIVE JAMES responded that SB 103 is doing away with
the POET reserve account, leaving in place the operating POET
account as well as the campaign account. With this change, the
entire $10,000 can be placed in the operational POET account,
although those funds have to last for two years.
CHAIR ROKEBERG noted that he has set up a savings account for
the funds in his POET reserve account, and is now at a loss as
to what to do with the interest earned by that account, since
interest earned is not specifically addressed in statute. He
added that he does report that amount of interest earned as
income to the Internal Revenue Service (IRS), but is constrained
by current statute from using it as personal income.
REPRESENTATIVE JAMES opined that interest earned from these
accounts is considered a political donation to the legislator's
own campaign and needs to be reported as such.
CHAIR ROKEBERG asked what becomes of the funds in the POET
accounts upon the death of a legislator while in office. He
said his interpretation is that the disposition of the accounts
would have to follow the statute.
Number 0732
BROOKE MILES, Executive Director, Alaska Public Offices
Commission (APOC), testified via teleconference and confirmed
that this is also the interpretation held the APOC staff.
CHAIR ROKEBERG surmised this meant that the surviving spouse
would have to go through the process of disposing of those funds
via donations to charities and/or political parties.
MS MILES confirmed this and added that the surviving spouse
could also choose to donate the funds to state or municipal
government agencies.
MR. BALASH added that the language regarding the limitation on
the disposal of funds from the POET account at the end the term
of office, page 3, lines 25-26, is consistent with the current
limitations on the POET reserve account mechanism. He noted
that one of the limitations is that these funds cannot be
pocketed as personal income.
Number 0882
SUSIE BARNETT, Ethics Committee Administrator, Select Committee
on Legislative Ethics ("Ethics Committee"), Legislative Agencies
and Offices, testified via teleconference. Referring to Section
8 on page 11, lines 8-12, she said that she and the chair of the
Ethics Committee, Skip Cook, have discussed this section; they
recommend that when the gift of transportation from one
legislator to another exceeds $250, there should be public
disclosure, as is the case with all other gifts. She explained
that this public disclosure would follow the same stipulations
as the public disclosure of other gifts.
MR. BALASH, as background for this provision, explained that
this language was added in the Senate Finance Committee (SFIN)
by Senator Olson, who had spoke to the difficulties a legislator
can have getting around in his particular district. "You can,
virtually, only get by with an airplane," Mr. Balash said, and
added that Senator Olson found that under the current ethics
requirements, even though he owns his own plane, he could not
invite somebody to his home and provide the type of hospitality
similar to what two legislators from the urban areas of the
state could provide to each other. On the topic of including
the disclosure requirements as suggested by Ms. Barnett, Mr.
Balash said that according to his understanding, there are three
options available to the legislature. One is to not require any
disclosure; the second would be to disclose to the [Ethics
Committee] only; and the third option would be full public
disclosure whereby the gift is reported to the [Ethics
Committee] and in turn entered into the legislative journal for
each body. Mr. Balash noted that disclosure of the gift of
travel referred to in Section 8 was not discussed, either during
committee hearings or during Senate floor debate.
MS. BARNETT added that currently, the sharing of travel expenses
between legislators would not have to be disclosed under SB 103
as written; under her suggested change, it would only have to be
disclosed if the value exceeds $250.
MS. MILES explained that the APOC, at its recent meeting,
reviewed SB 103 and identified some areas that will result in
administrative costs. With regard to Section 4 on page 5, lines
[6-11], she said that this provision makes an amendment to the
campaign disclosure law in conformance with a proposed amendment
to the legislative ethics law found later in SB 103. The effect
of this provision is to permit legislators and legislative staff
to use public resources to support or oppose ballot questions
regarding constitutional amendments. She pointed out that under
current law, public funds can be used to support or oppose
ballot questions only if they are specifically appropriated for
that purpose by state law or municipal ordinance. She added
that administrative regulations allow public officials to
communicate on ballot question issues, as long as the
communication is made in the usual and customary performance of
the official's duties. She noted that this has been interpreted
to mean that legislators can include commentary about proposed
constitutional amendment ballot propositions in their
constituent mailings, in their discussions before a Rotary Club
or chamber of commerce, and so forth.
Number 1224
MS. MILES continued, saying that the revision proposed by SB 103
is likely to attract public inquiries and complaints, because
the persons on the opposing side of constitutional amendment
ballot questions will probably have concerns about the
activities of legislators and legislative employees conducting
constitutional-amendment ballot-question campaign activities
with public funds. She said her overarching comment on this
proposed change is that none of the legislators' or legislative
employees' activities, with respect to the work done on
constitutional amendments, are currently regulated. She added,
however, that that could change once [legislators or legislative
employees] start actually expending public funds that have not
been specifically appropriated for the purpose of supporting or
opposing a ballot question issue.
REPRESENTATIVE JAMES suggested that the intent of this proposed
change is not necessarily to be utilizing a lot of public funds,
but rather to allow legislative staff to do some of the
activities during their regular workday (as opposed to during
their personal time) that are currently done by legislators on
ballot propositions.
MS. MILES said she believed that under the legislative ethics
provision of SB 103, the latter function would be allowed, but
under the campaign disclosure section, it simply permits
campaign activities. She clarified that [AS 15.13.145]
subsection (a)(1)-(3) is referring to state, municipal [and
university entities], and that one of the major provisions of
campaign finance reform was to restrict public money being spent
in campaigns. She added that when public money is spent, it
requires some additional public process; for example, when a
municipality wishes to spend money to support or oppose building
a new school, it must specifically appropriate that money by
ordinance. And while SB 103 would not allow legislators to
solicit funds for campaign activities, it would allow the
legislators and legislative employees to conduct campaign
activities related to a ballot proposition question that affects
the constitution, and allow for the use of general funds in that
campaign.
REPRESENTATIVE JAMES reiterated her comments regarding her
interpretation of the intent of SB 103. She asked what the
current procedure is when legislators and staff want to work on
constitutional amendment ballot questions, and where the funding
for those activities currently comes from.
MS. MILES explained that the legislature works on these issues
in its routine and normal way, up until the point where they
actually become ballot issues; once the question is placed on
the ballot, anyone can form a valid proposition group, which is
the least regulated of any group. Such a group can take
unlimited contributions from unlimited areas; the group simply
has to disclose everything.
REPRESENTATIVE JAMES said she never believed that it was ethical
for legislators to be a part of that, or able to spend any money
on that at all.
MS. MILES mentioned constitutional amendments relating to the
permanent fund dividend (PFD) and wolf hunting that became
ballot questions, as examples.
Number 1502
REPRESENTATIVE BERKOWITZ, with regard to the way SB 103 is
currently written, asked whether it is correct to say that a
legislator is permitted to use his/her office, for example, to
set up a phone bank to make calls in opposition or support of a
constitutional amendment.
MR. BALASH said that is correct, although he added that this did
not extend to initiatives because the use has to be permitted
under AS 24.60.030(a)(5)(G), which speaks directly to
constitutional amendments only.
REPRESENTATIVE BERKOWITZ, for the record, said:
I'm going to be offering an amendment to delete this
section of the bill; it is very troubling to me that
we cross that line. I see a very sharp division
between our role as legislators in putting
constitutional amendments on the ballot - or opposing
constitutional amendments - and then once that
amendment has, in effect, passed the legislature, our
role is done. We should be done with that amendment.
We can talk about it in the normal context that we
talk about bills with constituents, but I think for us
to be actively out soliciting support or opposition
for a proposition crosses a line that we ought not
cross.
CHAIR ROKEBERG asked whether legislators are allowed to use
state resources to campaign for or against ballot initiatives.
MS. MILES said no, and added that [activity regarding] other
ballot questions that are not about a constitutional amendment
would not be permitted.
CHAIR ROKEBERG remarked that he found this to be incongruous
because the citizens' right to change or amend a law via ballot
initiative is similar to the actions taken by the legislature in
its normal course of business. He added, "That's the nature of
a change of the law, and therefore I think the legislature
deserves and has the right to be intimately involved in that
discussion, using everything that they have [in] their power
...."
Number 1628
REPRESENTATIVE BERKOWITZ, on a prior point, surmised that the
resources the legislature has at its disposal include
telephones; printing offices; and for some legislators, such as
those in the majority, the ability to travel. There also are
other advantages whereby state funds can be expended in support
or opposition of a proposition. To be clear, he continued:
We have a very distinct constitutional role in
advancing or opposing constitutional amendments, and
it is entirely appropriate for us, as long as we're
within the process of acting as legislators on that
constitutional amendment, to agitate for or against
that proposition. But once it passes the legislature,
our role as legislators is finished. I think we have
every ability and every right as independent citizens
to speak to or against a constitutional amendment, but
that's very distinct [from] us bringing the power of
government that we have through our offices to bear on
an amendment.
REPRESENTATIVE JAMES agreed that [legislators] only have one
responsibility for using state funds: to do their job as
legislators. She therefore surmised that this legislation is an
attempt to expand that responsibility. She said she found that
troubling because no matter how [legislators] proceed, it is
going to be misunderstood by the public. To counter the point
that the legislator's job is done once an issue is placed on the
ballot, she said that her constituents look to her for guidance,
and because she has the obligation to provide assistance, she
offers them her outlook on the issue. She added that one of the
things she has found regarding constitutional amendments and
ballot issues is that from her perspective, it's a free-for-all:
there are no rules regarding honesty in advertising, and so the
public becomes victimized in this whole process, which can
result in wrong decisions being made for the long term.
REPRESENTATIVE JAMES said she disagreed with the practice of
using state resources for anything other than their legislative
responsibility, and that she did not believe that legislators
should lean on staff to gather votes. But, she added, it is
certainly appropriate for a legislator to defend the position
that he/she took on a constitutional amendment question. For
example, if she were to travel on state business and give a
presentation to people, if someone asked her for her opinion on
a constitutional amendment, she would freely speak to it. She
opined, however, that it would not be ethical for legislators to
join groups that raise funds to support or oppose constitutional
amendments.
MS. MILES, after acknowledging that it is the legislature that
sets policy and that the APOC merely administers the laws it is
given, said that the APOC did not want to interfere with the
legislature's deliberation of this proposed policy change.
Number 1897
CHAIR ROKEBERG recalled that during the time period surrounding
the "advisory vote," the standards put forth by the APOC were
very limiting regarding legislators' ability to speak out on
that issue. He opined that legislators who were opposed to the
issue "didn't feel constrained to abide by those guidelines,"
whereas legislators in support of the issue did abide by the
guidelines.
MS. MILES referred to Section 5 [sub-subparagraph (iv)] on page
6 [lines 6-9], and said that this amends the definition of
contribution to exclude polls that are limited to issues and do
not name a candidate, unless the poll was requested by or
designed primarily to benefit the candidate or was provided by a
person required to register as a lobbyist. She explained that
under current law, when a campaign pays for a poll, the
expenditure is disclosed as a campaign expense. If someone else
pays for a poll, she continued, and gives the results to a
campaign without recompense, then the polling information is
currently considered a contribution if the information is
intended to influence the outcome of that candidate's election.
MS. MILES went on to explain that under the language proposed in
SB 103, any person other than lobbyists - including any entities
such as associations, corporations, and limited partnerships
currently prohibited from masking contributions - could conduct
a poll and give the results to a campaign. Even if the
information has benefited the campaign, no contribution results
if the two conditions exist: one, the poll is about issues and
doesn't mention a candidate; and, two, the poll mentions a
candidate but wasn't requested by or designed primarily to
benefit the candidate. She remarked that this provision of SB
103 will result in administrative costs because the APOC will be
required to make judgment calls on the content and basis of
polls. She added that polls can be paid for by any person
(except lobbyists) or entity, and neither the cost nor the
identity would be disclosed to the public.
Number 2023
MR. BALASH explained that the language regarding polls was part
of the original bill and was included in an attempt to "get our
hands around those things" that may or may not have value, and
things that may or may not necessarily need to be disclosed.
With regard to a poll provided by somebody other than an
allowable individual, he asked how value is assigned to that.
For example, he asked, if going strictly by the cost of the poll
- one that is an issue-based poll and not designed to benefit
one candidate or another - and the poll is given to candidate A,
who reports it at the full value of its cost, and then the donor
also provides it to candidate B in separate race, should
candidate B report the donation at the full cost, or half the
cost? So, he continued, if the reporting requirement is going
to include the value of the poll, one would have to figure out
how many individuals were given the poll, divide the cost among
those individuals, and then have each of them report it. He
added that should the poll then be given to someone else, the
reporting problem would be compounded, and could lead to
reporting inconsistencies. Hence, rather than include in the
definition of what needs to be reported specific formulas to
determine the value of polls, he said it was simply decided to
exclude [polls] altogether - except those types described in SB
103.
MS. MILES, on another point, referred to Section 6 on page 7,
lines 1-[5], and said this provides that communications with a
value of $500 or less from corporations, labor organizations, or
business or trade associations are not expenditures. She
explained that under current administrative regulations, it is
not considered a contribution for these entities to communicate
with their members, employees, or families on any subject, as
long as it is in a format that the entity has used in the past
to communicate with those people, and as long as it does not
solicit contributions on behalf of a candidate or ballot
question. For this reason, she relayed that the APOC is unclear
as to why this provision of SB 103 is rewriting current law.
She asked if the intent is to limit the communication to $500 a
year, or per election, or per communication. She also commented
that since no reporting is required regarding "these non-
expenditures," either under current law or under SB 103, the
public would have no way of knowing about them; if the intent of
[limiting] these non-expenditures is to allow these groups to
actually solicit funds on behalf of candidates, however, it is
likely to result in public inquiries.
MR. BALASH explained that this provision was added by the Senate
Judiciary Standing Committee; as he understood it, the intention
was to extend to corporations, nonprofits, labor organizations,
and so forth the same right to communicate freely, and to make
independent expenditures, as any other individual in Alaska has,
and also to subject these entities to the same limitations as
individual Alaskans have regarding contributions made during a
campaign.
Number 2283
REPRESENTATIVE OGAN surmised that the intent is to place a limit
of $500 a year on these entities.
REPRESENTATIVE BERKOWITZ, on valuation, asked: Assuming that a
ten-page "mail-out" costs $5,000 and one column is devoted to a
recommended candidate or slate, what is the value of that one
column?
REPRESENTATIVE OGAN suggested it could be calculated by using a
percentage of the column inches.
MR. BALASH acknowledged that there are difficulties in
approaching the topic of valuation, but he said he believes that
the APOC has the regulatory ability to set standards for
determining value.
MS. MILES explained that this provision of SB 103 would
overwrite the current APOC regulation that permits these various
kinds of communications (as long as they don't solicit) in
unlimited amounts, and will result in a $500 limit to these
communications. She also pointed out that nothing in this
provision speaks to independent expenditure activity such as
when a candidate calls up ARCO and says, "Can you please send
out a communication to your people." It also could be a
coordinated activity because there is nothing that says it must
be independent. This provision of SB 103, she said, would
overwrite the ability of all these organizations to communicate
freely with their members, and the provision relates to
expenditures, which, as she understands, could raise
constitutional issues. She added that the APOC would rather the
current situation prevail with regard to communications, instead
of imposing limits.
Number 2419
MR. BALASH, in response to a question, said that Senator Donley
proposed this language.
REPRESENTATIVE BERKOWITZ noted that he would be offering an
amendment later in the meeting to delete this language from SB
103.
REPRESENTATIVE JAMES commented that she did not understand what
this language is trying to do.
CHAIR ROKEBERG noted also that he did not understand what the
purpose of this language is. "If it's already allowed, why are
we trying to put a value on it," he added.
REPRESENTATIVE JAMES noted that the groups listed in this [sub-
subparagraph (ii)] cannot currently make any contributions,
period.
CHAIR ROKEBERG explained that these communications are
considered expenditures for the purpose of these entities' own
records.
REPRESENTATIVE JAMES surmised that there is no difference; they
are spending money via the communications and thus making a
contribution.
CHAIR ROKEBERG noted, however, that currently these entities can
endorse candidates in their newsletters.
TAPE 01-59, SIDE B
Number 2475
REPRESENTATIVE JAMES suggested that if these entities endorse a
list of candidates in their newsletter, then she considers it to
be a campaign contribution. She offered that since entities are
already allowed unlimited communications, the language is
attempting to restrict communications to $500 only; thus, no
communications could occur that cost more than that.
REPRESENTATIVE BERKOWITZ said his interpretation is that as long
as it is a regular company mail-out (and, for example, in the
November mail-out it says "here's our recommended list of
candidates or propositions that we support") this is permissible
under current regulation, but anything in excess of that would
not be permissible.
MS. MILES clarified that it would be permissible for the
organization to talk to its membership on any subject, including
advocating on behalf of candidates, so long as it didn't solicit
contributions. She noted that communications wouldn't even have
to be in the form of a newsletter; they could instead be in the
form of e-mail or "telephone trees." She also confirmed that
there are some First Amendment issues involved. Furthermore, in
response to questions, she said that the language in this
provision of SB 103 does confuse the APOC's responsibilities and
in fact may even overwrite the existing regulation.
REPRESENTATIVE BERKOWITZ then surmised that this language would
lead to more regulations, more confusion, possibly more APOC
complaints, and more difficulties for candidates who are trying
to comply but for reasons beyond their control are unable to.
MS. MILES said that Representative Berkowitz's comments express
the APOC's concerns very well.
CHAIR ROKEBERG, on another point, asked why a candidate's filing
fee is not a deductible expenditure.
Number 2364
MS. MILES said she has always understood that a filing fee can
be listed as a campaign expenditure since it is certainly
reasonably related to a person's campaign. She clarified that
the language on page 6, lines 29-30, is simply stating that a
filing fee cannot be considered an expenditure before filing for
office. Paying the filing fee out of campaign funds and then
reporting it is not considered a violation, she added.
REPRESENTATIVE JAMES noted that she did not believe that the
filing fee should be paid for with campaign funds.
CHAIR ROKEBERG offered that there is a lot of confusion
[surrounding the issue of campaign expenditures], and that the
statutes should clarify these points. Chair Rokeberg then asked
Ms. Miles to comment on Amendment 1 [22-LS0148\G.1, Cramer,
4/4/01], which read:
Page 1, line 1, following "campaigns":
Insert ", financial disclosure statements of
public officials and legislators,"
Page 1, following line 2:
Insert a new bill section to read:
"* Section 1. AS 15.13.030 is amended to read:
Sec. 15.13.030. Duties of the commission. The
commission shall
(1) develop and provide all forms for the
reports and statements required to be made under this
chapter, AS 24.45, and AS 39.50; the commission shall
develop and provide a single form to be used for
filings of financial disclosure statements by public
officials under AS 39.50 and filings of financial
disclosure statements by legislators under
AS 24.60.200 - 24.60.260;
(2) prepare and publish a manual setting
out uniform methods of bookkeeping and reporting for
use by persons required to make reports and statements
under this chapter and otherwise assist candidates,
groups, and individuals in complying with the
requirements of this chapter;
(3) receive and hold open for public
inspection reports and statements required to be made
under this chapter and, upon request, furnish copies
at cost to interested persons;
(4) compile and maintain a current list of
all filed reports and statements;
(5) prepare a summary of each report filed
under AS 15.13.110 and make copies of this summary
available to interested persons at their actual cost;
(6) notify, by registered or certified
mail, all persons who are delinquent in filing reports
and statements required to be made under this chapter;
(7) examine, investigate, and compare all
reports, statements, and actions required by this
chapter, AS 24.45, and AS 39.50;
(8) prepare and publish a biennial report
concerning the activities of the commission, the
effectiveness of this chapter, its enforcement by the
attorney general's office, and recommendations and
proposals for change; the commission shall notify the
legislature that the report is available;
(9) adopt regulations necessary to
implement and clarify the provisions of AS 24.45,
AS 39.50, and this chapter, subject to the provisions
of AS 44.62 (Administrative Procedure Act)."
Page 1, line 3:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
Number 2228
MS. MILES said that she has seen Amendment 1, and went on to
explain that the legislative financial disclosure and the public
officials financial disclosure vary in only three ways: income,
loans, and gifts. Under legislative financial disclosure,
[legislators and staff] aren't required to file disclosure of
any gift with the APOC; instead, these disclosures are filed
with the Legislative Ethics Committee. With respect to income
and loans, she continued, legislators (only) have to report the
amount of income if the source of the income or loan has a
substantial interest in legislative action. She added that
there are only 66 people who file legislative disclosure forms,
whereas there are 3,000 people who file the public officials'
disclosure statements. She relayed that the changes proposed by
Amendment 1 could be instituted without a change to statute, but
if the legislature still wishes to institute Amendment 1, the
APOC staff suggests that the language should be inserted into AS
39.50 and AS 24.60, instead of the financial disclosure statute
- AS 15.13 - as is proposed currently by Amendment 1.
MS. MILES also relayed that Nancy Freeman has said that she is
willing to work on combining the forms.
CHAIR ROKEBERG said that is not correct; according to his
information, Ms. Freeman said the law needed to be changed.
MS. MILES said, "I don't believe that's true, and she
understands that that's not true." Ms. Miles opined that when
Ms. Freeman said that the law would need to be changed, she
meant that public officials would be required to disclose the
amount of income. However, Ms Miles added, that word doesn't
really apply to public officials because they're not allowed to
work for an outside entity that would have a substantial
interest in legislative action. When "you" work for the state,
it's very limited what "you" can do, she noted. On the point of
instituting Amendment 1, she explained that it would just be a
matter of combining forms, particularly since the reporting
thresholds are now same for both legislative financial
disclosure and public officials.
CHAIR ROKEBERG relayed that he found it very inconvenient when
he sent in his form to the APOC and it was rejected for being
the wrong form.
MS. MILES, as the new director of the APOC, said that she
disapproved of that type of action; the person handling the form
should have simply requested any additional information that was
needed in order to finish filling out the correct form.
CHAIR ROKEBERG announce that the hearing on SB 103 would be
recessed until later in this same meeting.
CHAIR ROKEBERG called an at-ease from 2:17 p.m. to 2:18 p.m.
HB 210 - STAT. OF LIMITATIONS:SEXUAL ASSAULT/ABUSE
[Contains discussion of the testimony heard for HB 143 regarding
evidence collection and preservation, and the statistical
correlation between burglary and sexual assault.]
Number 2047
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 210, "An Act relating to sexual assault and
sexual abuse of a minor."
Number 2028
REPRESENTATIVE MEYER made a motion to adopt the proposed
committee substitute (CS) for HB 210, version 22-LS0782\C,
Luckhaupt, 4/3/01, as a work draft. There being no objection,
Version C was before the committee.
REPRESENTATIVE MEYER, speaking as the sponsor, explained that
the intention with Version C was to remove the statute of
limitations on felony sexual assault. The original version of
HB 210 included all sexual assault crimes, of which there are
four different degrees, with the fourth degree being a class A
misdemeanor. He clarified that currently there is no statute of
limitations for sexual abuse of a minor, and Version C would not
alter that; sexual abuse of a minor is only mentioned in Version
C because the drafter was attempting to group together all of
the time limitations that pertain to sexual assault. He said
that in his mind, sexual assault is second only to murder.
REPRESENTATIVE MEYER added that studies now show that
incriminating evidence can prove sexual assault no matter how
much time has passed. He said that it was his opinion that
prosecution of sexual assault should not be limited by the
passage of time because the effects of sexual assault will be
with the victim for the rest of his/her life. He noted that
according to testimony heard regarding HB 143, technological
advances now allow for better preservation of evidence, and this
evidence shows a correlation between offenders who commit
[burglary] and offenders who commit [sexual assault]. He
proffered that if sexual assault can be proven [beyond] a
reasonable doubt, even 20 years after it occurred, then it
should be prosecuted.
REPRESENTATIVE MEYER noted that in addition to applying to
offenses committed on or after the effective date, Version C
also applies to offenses committed prior to the effective date
as long as the current statute of limitations for those offenses
has not expired. He mentioned that the members' packets contain
additional information on deoxyribonucleic acid (DNA)
collection, and he also mentioned that Version C has two zero
fiscal notes and one undetermined fiscal note.
Number 1851
KAREN BITZER, Executive Director, Standing Together Against Rape
(STAR), testified via teleconference in support of HB 210. She
said that sexual assault is a crime of fear and of power, and
merely because of the trauma involved, it is an underreported
crime. She added that STAR has found that although a victim may
go through the evidence-collection process, at that point he/she
can become even more fearful and decide not to pursue
prosecution. Yet, years later, the victim will come forward and
say that he/she wishes that he/she had had the courage to
continue. She said STAR believes with the expansion of the
concept of SART - Sexual Assault Response Team - and of child
advocacy centers, along with telemedicine, there will be more
collection of DNA, and therefore, there would be more
opportunities to link more crimes genetically. To illustrate,
she said STAR has found that in the last five years in the
United States, through the use of the DNA database, over 200 ex-
convicts have been linked to more recent crimes. And in
Britain, since 1985, over 30,000 suspects have been linked to
crime scene evidence through the use of DNA databases.
Therefore, Star believes that removing the statute of
limitations [for sexual assault] protects the victim's right to
justice.
REPRESENTATIVE JAMES asked, if someone were loath to go through
the evidence collection process, whether there is a way to go
forward with prosecution anyway. And if not, she wanted to know
how a case could be pursued years after the fact.
MS. BITZER responded that STAR would love to see more
evidentiary prosecution occurring in cases of sexual assault,
but the proper mechanisms need to be in place in order to do
that. Currently, a person still has the right to stand before
his/her accuser. For this reason, evidentiary collection and
prosecution - whereby a person can be prosecuted on the evidence
alone - would be a wonderful thing for sexual assault cases.
She noted, however, that the legal question is whether the
mechanism is in place in order for later prosecutions to take
place.
REPRESENTATIVE JAMES said that she viewed the question as one of
finding ways in which to allow cases to go through on the basis
of evidence, rather than waiting several years for a victim to
come forward again.
Number 1665
REPRESENTATIVE BERKOWITZ said that if HB 210 passes, there would
be no statute of limitations for a criminal action, but there
still would be a statute for limitations for civil action. He
asked if the door should be opened in order to remove the
statute of limitations for civil actions as well.
MS. BITZER said that was certainly something to be considered,
although she was not exactly sure what the impact would be. She
explained that unlike victims of domestic violence and family
members of murder victims, sexual assault victims do not usually
seek restitution in civil processes. She added that this was
not to say that allowing them the opportunity would not be a
good thing, just that, as a standard rule of thumb, sexual
assault victims are the least likely of all victims to go
forward with a civil case.
REPRESENTATIVE JAMES asked whether contraction of a sexually
transmitted disease (STD) increases the likelihood that a sexual
assault victim will file a civil action.
MS. BITZER reiterated that statistically, sexual assault victims
are the least likely of all victims to go forward with a civil
case, regardless of STDs.
Number 1574
TRISHA GENTLE, Executive Director, Council on Domestic Violence
and Sexual Assault, spoke in support of HB 210, and she thanked
Representative Meyer for his ongoing work in bringing the issues
of sexual assault to the forefront in Alaska. She explained
that the way in which HB 210 could be the most supportive of a
victim of sexual assault is if the victim goes through the rape
exam at the time of the assault. In this way, physical evidence
- both DNA and other kinds of physical evidence - can be
collected and maintained. She reported that there are a lot of
situations in which victims do not want to go forth through the
trial process. They have been sexually abused, they sit through
hours of police reporting, they go through hours of exams
(spoken of in detail last year), and, as the case moves forward,
they simply want to put the whole experience behind them. Hence
victims feel that they can't go forth with prosecution; they do
not want to go through the additional trauma of the trial.
MS. GENTLE offered that by having physical evidence on file and
by removing the statute of limitations, it would provide a
victim the opportunity, at a later date when he/she felt more
healed and stronger, to go forth with prosecution. For example,
there may be a perpetrator being charged on a rape case, and a
victim who had been raped ten years ago and who had gotten an
exam but at the time there was not enough evidence to forth on
the case; then a connection might be made between the two cases
and that perpetrator could be retried on the second assault
because of matching evidence including matching DNA. In
addressing the issue of a statute of limitations for a civil
action, she said she thought it would be wonderful to open up
the door because immediately after the crime is not the best
time for a victim to be making the decision whether to go forth
with a civil case. She has seen that victims - for instance,
victims of child abuse or incest - do go forth with civil cases.
Number 1420
BLAIR McCUNE, Deputy Director, Public Defender Agency (PDA),
Department of Administration, testified via teleconference. He
said [the PDA's] main concern relates to the difficulties in
defending a case that is over ten years old. Trying to find
alibis and witnesses becomes extremely difficult, and he opined
that as being the main reason for having a statute of
limitations for offenses. He said that the PDA feels that the
recent increase to ten years in the statute of limitations
pertaining to sexual assault and other crimes against a person
is appropriate. He added that one of the obvious purposes of a
statute of limitations is to allow a person to defend
himself/herself when charged with a crime. He concluded by
saying that the PDA was not in favor of HB 210.
REPRESENTATIVE OGAN noted that that logic works both ways:
prosecutors would have just as difficult a time finding
witnesses - both defense and prosecution are yoked with that
burden. He added, therefore, that he would not have any
difficulty passing HB 210 on that basis.
Number 1279
JERRY LUCKHAUPT, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, explained that the reason he had added "sexual abuse of
a minor" to Section 1 was for clarity's sake; the current
statute pertaining to crimes against children, which is located
elsewhere, already stipulates that there is no statute of
limitations. He affirmed for Chair Rokeberg that sexual abuse
of a minor in the fourth degree, which is a misdemeanor, is
already included in that statute.
CHAIR ROKEBERG added that the crime of incest has a ten-year
statute of limitation, and that "Satch Carlson doesn't have a
statute of [limitations]."
REPRESENTATIVE BERKOWITZ asked, "How many cases do we have that
are more than five years old."
REPRESENTATIVE MEYER responded that according to a news
interview with Juneau's chief of police, there are very few
cases that go past the ten-year period, but there are some; the
police chief's opinion was that those cases should still be
prosecuted whenever possible. Representative Meyer said that
based on the fact that there were a few such cases in Juneau, he
assumed there were even more in Anchorage and Fairbanks,
although he did not have a specific number.
CHAIR ROKEBERG referred to Amendment 1 [22-LS0782\C.1,
Luckhaupt, 4/9/01], which read as follows:
Page 1, line 4, following "murder,":
Insert "felony"
Page 1, line 7, following "murder,":
Insert "felony"
Page 2, line 1:
Delete "AS 11.41.427 - 11.41.458"
Insert "AS 11.41.427 - 11.41.438 and 11.41.450 -
11.41.458"
He asked if Amendment 1 is intended to exclude removal of the
statute of limitations for the crime of sexual abuse of a minor
in the fourth degree (a class A misdemeanor), thereby keeping
the statute of limitations for that crime at five years.
Number 1128
MR. LUCKHAUPT said that was correct; that was the effect of
Amendment 1. He explained that there are two ways in which
sexual abuse of a minor in the fourth degree is committed. The
first involves a person under the age of 16 who engages in
sexual penetration - consensual or otherwise - with a victim who
is under the age of 13 and is at least three years younger than
the offender; if the sexual penetration is not consensual, then
an assault charge could also be filed. The second involves
sexual contact between a [person who is at least 18 years of age
and occupies a position of authority in relation to the victim]
and a victim who is 16 or 17 years old and at least three years
younger than the offender. He noted that the reference in
statute to an offender who occupies a position of authority in
relation to the victim is the result of [an incident involving]
Satch Carlson.
Number 1016
CHAIR ROKEBERG made a motion to adopt Amendment 1. To clarify,
he said that there was no intention behind HB 210 to include
misdemeanor sexual abuse of a minor; the only intent behind HB
210 was to remove the statute of limitations for felony sexual
assaults.
REPRESENTATIVE MEYER confirmed that intention.
Number 0938
REPRESENTATIVE BERKOWITZ objected for the purpose of a possible
amendment to Amendment 1. He noted that HB 210 would completely
remove the statute of limitations on a crime, which has only
been done previously for the crime of murder. He said he had
concern over the removal of the statute of limitations for class
C felony sexual assaults. He suggested - in seeking a balance
with the law - that the existing ten-year statute of limitations
suffices for that class of offense. And, with every sensitivity
towards how horrific sexual assault is, he stated that "we" have
differing degrees of sexual assault in statute purposely to
express that there are different levels of concern, and,
therefore, he was troubled by entirely lifting the statute of
limitations.
REPRESENTATIVE JAMES said she agreed with Representative
Berkowitz.
REPRESENTATIVE MEYER said: "What you're saying is that it would
probably be OK to limit the statute of limitations on first
degree [sexual assault] and second degree [sexual assault],
which is [respectively, an] unclassified felony and [a] class B
felony." But, he argued, a class C felony still involves sexual
penetration and sexual contact, and in his mind, still [warrants
being included in HB 210].
CHAIR ROKEBERG asked if "the old statutory rape" was considered
third degree [sexual assault].
MR. LUCKHAUPT explained that the old statutory rape [crime]
exists in all four of the sexual-abuse-of-a-minor statutes
because "consent" was removed as a factor. He noted that the
legislature has made the age of 13 the dividing line at which a
victim can never consent to have sex; the legislature has
decided there can never be an occasion when it is right for a
12-year-old to have sex.
REPRESENTATIVE BERKOWITZ withdrew his objection to Amendment 1.
Number 0688
CHAIR ROKEBERG asked if there were further objections to
Amendment 1. There being no objection, Amendment 1 was adopted.
Number 0672
REPRESENTATIVE BERKOWITZ made a motion to adopt Conceptual
Amendment 2, "the statute of limitations be lifted for
unclassified [felony] sexual assault and [unclassified felony
sexual assault of a minor], A felony, and B [felony] of the
same, ... which would leave the C felonies with the ten-year
[statute of limitations] that exists."
Number 0620
REPRESENTATIVE MEYER objected for the purpose of discussion. He
asked for a definition of third degree. He added that it was
his understanding that a third-degree - or class C - felony
still involved penetration and [sexual] contact.
Number 0603
MR. LUCKHAUPT explained that third-degree sexual abuse of a
minor does involve sexual penetration, and that third-degree
sexual assault, which is also a class C felony, has three forms.
One form involves a guard at a correctional facility engaging in
sexual penetration with a prisoner. A second form involves an
offender who engages in sexual contact with a person whom the
offender knows to be mentally incapable, incapacitated, or
unaware that a sexual act is being committed. A third form
involves a person, such as a counselor or a guard at a juvenile
correctional facility, who engages in sexual penetration with a
person 18 or 19 years of age who the offender knows is committed
to the custody of the Department of Health and Social Services
(DHSS) [or the offender is the legal guardian of the person].
Number 0512
REPRESENTATIVE BERKOWITZ noted that one of the cornerstones of
criminal law is proportionality, wherein there has to be a
proportional punishment to the crime. And the legislature has
set up a statutory scheme whereby unclassified, class A, class
B, and class C felonies, and class A and B misdemeanors exist.
He said he thought that removing the statute of limitations for
class C felonies was being disproportionate. He clarified that
Conceptual Amendment 2 would remove the inclusion of class C
felonies for the crimes of sexual assault and sexual assault of
a minor from HB 210, which would then only remove the statute of
limitations for unclassified felonies, class A felonies, and
class B felonies of both sexual assault and sexual assault of a
minor.
MR. LUCKHAUPT noted that the crime of incest is a class C
felony, as is the crime of indecent exposure in the first
degree.
CHAIR ROKEBERG remarked that HB 210 does not affect the current
statute of limitations for the crimes of incest or indecent
exposure.
MR. LUCKHAUPT agreed but questioned whether Conceptual Amendment
2 would involve the statutes pertaining to crimes committed
against children beyond what is listed in HB 210.
REPRESENTATIVE BERKOWITZ noted that in his experience, children
sometimes don't want to confront [the crime] until they are
older, and so a longer statute of limitations is, and can be
appropriate. But forgetting the crime, he said, and just
looking at the classification of crimes, there is a hierarchy of
unclassified, [class] A, B, and C felonies; it seems that the
statute of limitations ought not to be entirely lifted on lower-
level crimes, regardless of how offensive those crimes are
thought to be. The legislature has made a determination that
there are different categories.
REPRESENTATIVE MEYER said that in his opinion, rape is rape,
whether it involves a prison guard with a prisoner, or a
caregiver at an old folks home or mental institution. He
likened it to [the crime of] murder in that there are different
levels, but all have [the statute of limitations removed].
REPRESENTATIVE BERKOWITZ countered that such was not the case
[with the crime of murder].
REPRESENTATIVE OGAN requested clarification on the effects of
Conceptual Amendment 2.
Number 0270
CHAIR ROKEBERG explained the effects to be such that the removal
of the statute of limitations for felony sexual assault and
felony sexual abuse of a minor would not include the class C
felonies of those crimes. Thus unclassified, class A, and B
felonies for the crimes of sexual assault and sexual abuse of a
minor would have no statute of limitations, and class C felonies
and misdemeanors of those same crimes would retain the current
ten-year statute of limitations. He clarified that [the crime
of] indecent exposure in the first degree was also a class C
felony.
REPRESENTATIVE OGAN requested an explanation of the difference
between indecent exposure in the first degree and indecent
exposure in the second degree.
REPRESENTATIVE MEYER asked if [the crime of] indecent exposure
is considered a sexual assault.
CHAIR ROKEBERG noted that [the crime of] indecent exposure
already has a ten-year statute of limitations.
MR. LUCKHAUPT clarified that he had posed his questions
regarding [the crime of] indecent exposure because he was not
sure if Representative Berkowitz intended with Conceptual
Amendment 2 to affect all of the existing statute of limitations
pertaining to children. He said that if Conceptual Amendment 2
only applies to [the crime of] class C sexual assault as it
pertains to adults, then he did understand it.
REPRESENTATIVE BERKOWITZ commented that committee staff has
pointed out that there is a section that says: "even if the
general time limit has expired, a prosecution for sexual assault
for an offense committed against a person under the age of 18
may be commenced at anytime." Therefore, he noted, his concern
regarding minors is already addressed in current statute.
REPRESENTATIVE MEYER further clarified that Conceptual Amendment
2 would only apply to [adult victims of] sexual assault.
CHAIR ROKEBERG agreed that Conceptual Amendment 2 would not
repeal the current law regarding [victims] 18 and under. He
added that Amendment 1 was nothing more than a clarification of
an existing statute.
REPRESENTATIVE JAMES questioned what would happen if, 20 years
after a crime, it was prosecuted as a class B felony, but
resulted in a class C felony.
REPRESENTATIVE BERKOWITZ, "That's the way it goes."
REPRESENTATIVE OGAN offered that it would be considered a lesser
included offense.
TAPE 01-60, SIDE A
Number 0001
REPRESENTATIVE JAMES remarked that if all [the aforementioned
felonies] were included in [HB 210], then that problem would not
exist.
REPRESENTATIVE MEYER indicated that that was the standard he was
using: penetration is what separates felony from misdemeanor.
REPRESENTATIVE JAMES inquired whether a class C felony involved
penetration.
REPRESENTATIVE MEYER said it did.
REPRESENTATIVE BERKOWITZ said it did not [necessarily]. A class
C [felony sexual assault] can be contact, he added.
REPRESENTATIVE JAMES asked if there was a dividing line between
[class B felony and class C felony sexual assaults], and if so,
what it consisted of.
REPRESENTATIVE MEYER said he thought a class C felony sexual
assault involved penetration.
Number 0061
MR. LUCKHAUPT, to clarify, said:
Involving the same age groups, and the same factors in
regards to whether someone's a prison guard or
something like that, sexual contact is always one step
below sexual penetration. ... Sexual assault in the
first degree always involves penetration. You've got
a form of sexual contact involving the same actors
that is the second-degree offense. There are also
forms of sexual penetration with new elements,
involving new actors and new conditions on their
relationship vis-a-vis each other; that is also
classified as a second-degree offense. But ... sexual
contact, which is mere touching, is always one step
below sexual penetration involving the same actors -
the same victim and the same offender.
REPRESENTATIVE JAMES said it seems to her that [prosecution of
the crime of sexual contact] ought not to be open forever.
REPRESENTATIVE MEYER said he agreed.
CHAIR ROKEBERG suggested that the committee adopt Conceptual
Amendment 2.
REPRESENTATIVE BERKOWITZ noted that one of the forms of [a class
C felony sexual assault] says "engages in sexual penetration
with a person 18 or 19 years of age who the offender knows is
committed to the custody of the Department of Health and Social
Services ... and the offender is the legal guardian of the
person."
CHAIR ROKEBERG suggested, then, that [the forms of class C
felony sexual assault which involve sexual penetration] be
exempted from Conceptual Amendment 2.
REPRESENTATIVE BERKOWITZ acknowledged the difficulty in drafting
such an exemption within Conceptual Amendment 2.
CHAIR ROKEBERG expressed confidence that Mr. Luckhaupt could
accomplish it.
MR. LUCKHAUPT suggested that Conceptual Amendment 2 could say
that class C [felonies] that involve sexual penetration are
included in the unlimited statute of limitations. If such were
agreed upon, he confirmed that he could develop language to that
effect. He then described the agreed-upon Conceptual Amendment
2 as being "unclassified, class A, and class B sexual assaults
involving adult victims are all unlimited statute of
limitations; class C felonies ... involving adult victims where
sexual penetration is involved are also unlimited statute of
limitations." He added that the other class C felony sexual
assault crimes retain the ten-year statute of limitations under
current law.
Number 0330
CHAIR ROKEBERG asked if there were any objections to Conceptual
Amendment 2. There being no objection, Conceptual Amendment 2
was adopted.
Number 0340
REPRESENTATIVE BERKOWITZ made a motion to adopt Conceptual
Amendment 3, "to erase the differences between the criminal code
and the civil code." He explained that since the statute of
limitations is being removed from the criminal code, the statute
of limitations should also be removed from the civil code.
Number 0356
CHAIR ROKEBERG objected, and noted that Conceptual Amendment 3
would constitute tort reform.
Number 0391
A roll call vote was taken. Representative Berkowitz voted for
Conceptual Amendment 3. Representatives Meyer, James, Ogan,
Coghill, and Rokeberg voted against it. Therefore, Conceptual
Amendment 3 failed by a vote of 1-5.
REPRESENTATIVE BERKOWITZ added that he thought [that failure to
pass Conceptual Amendment 3] leads to a very bizarre result
whereby the state is allowed to go after offenders
[indefinitely] but the victims will not have the same ability.
CHAIR ROKEBERG noted that Conceptual Amendment 3 was an
interesting concept; because it was such a major issue, he
suggested that Representative Berkowitz create other legislation
to accomplish such a goal.
REPRESENTATIVE BERKOWITZ remarked that [such a change to the
civil code] did fit under the title of HB 210.
Number 0425
REPRESENTATIVE JAMES moved to report HB 210, version 22-
LS0782\C, Luckhaupt, 4/3/01, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, CSHB 210(JUD) was reported from the
House Judiciary Standing Committee.
HB 187 - VANDALISM OF CEMETERIES & GRAVES
Number 0440
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 187, "An Act relating to the destruction,
desecration, and vandalism of cemeteries and graves."
Number 0480
LORI L. BACKES, Staff to Representative Jim Whitaker, Alaska
State Legislature, presented HB 187 on behalf of the sponsor,
Representative Whitaker. She explained that under current
Alaska statutes, there are no provisions relating specifically
to the vandalism or desecration of modern cemeteries and
memorials. One legal opinion is that they are protected under
the Alaska Historic Preservation Act; however, persons who are
charged with the maintenance and care of cemeteries are
unconvinced that AS 41.35.200 provides for the penalties
necessary to protect the safety and dignity of Alaska's
cemeteries and memorials from theft, vandalism, and other forms
of desecration. Acts of vandalism are currently punishable
under statutes that relate to criminal mischief, but the degree
of crime centers around the monetary value of the damage and
does not recognize the personal insult and emotional injury that
is suffered by a family, community, or tribe when cemeteries,
burial sites, or memorials are vandalized. Ms. Backes conveyed
that HB 187 clearly states that it is a crime of criminal
mischief in the second degree if a person "defaces, damages, or
desecrates a cemetery or the contents of a cemetery or a tomb,
grave, or memorial regardless of whether the tomb, grave, or
memorial is in a cemetery or ... appears to be abandoned, lost,
or neglected".
REPRESENTATIVE BERKOWITZ noted that language in HB 187 makes an
exception for defacing, damaging, desecrating, or removing
contents, if the action is consistent with law. He envisioned
that law enforcement may need to engage in these types of acts,
or that damage might be done during the course of an
archeological exhibition.
MS BACKES explained that those activities are already protected
by federal law, as well as by the Alaska Historic Preservation
Act. However, she added, if, for example, a state worker or a
cemetery worker needs to excavate a grave, remove a headstone,
or perform some other act that's within his/her duty, HB 187
adds an affirmative defense.
CHAIR ROKEBERG noted that he has concerns about archeological
"digs," and that the university has suggested an amendment to
add "or state permit" in order to address that point. He then
asked whether "headstone or marker rubbings" caused damage or if
they would be considered a violation.
MS. BACKES acknowledged that this point had not been considered
when the research on HB 187 was being done. She said that she
would find it difficult to think that "headstone rubbings" would
cause damage to the site or cause insult to the family, but she
noted that some people might find it offensive. She added that
HB 187 does not specifically address this issue.
Number 0770
ROBERT SAM, Cemetery Caretaker, explained that he has been
involved with the restoration, preservation, and protection of
cemeteries, sacred sites, historic sites, and cultural heritage
sites in different parts of Alaska for the last 15 years, since
1986. He added that in 1988 he received the "Alaska Volunteer
of the Year" award; he also has received national and
international recognition over the years for performing these
services. He said that over the years he has dealt with
vandalism, desecration, and grave robbing. He added that even
headstone rubbing can cause damage. He provided the committee
with photographs of desecrated sites. Cemeteries are popular
places for people to hold parties and drink alcohol, he informed
the committee. Mr. Sam went on to explain that marble
headstones featuring angels are used primarily for children's
graves, and that it is very popular among youth to knock the
heads and wings off these [angel headstones].
MR. SAM noted that it is only a few people who do damage to
these sites. He recounted a recent incident of vandalism: the
perpetrators pushed the headstones over and then chipped out the
names of the deceased, and in some cases actually smashed many
of the older headstones into little pieces. Mr. Sam noted that
the hardest part of his job as a caretaker is calling the
families and informing them that their family plots have been
desecrated; many families become victims of this type of abuse.
On another point, Mr. Sam explained that there is a growing
market for headstones, particularly the ones with Alaskan Native
symbols on them. He remarked that in Alaska, it is very
apparent that some people still believe it is OK to desecrate a
cemetery. He added that there is very little law that addresses
this type desecration; hence the general public feels that it's
OK to continue this type of behavior. Even when incidents of
vandalism are reported to the police, the law is so vague that
nothing is done.
Number 1156
MR. SAM reported that cemeteries in Alaska are disappearing on a
daily basis because they are not protected. He said that the
time has come for the State of Alaska to address this issue and
provide protection of these sacred sites. All cemeteries are
being vandalized, he said, not just Native sites; many are
simply disappearing, and it is very important to protect those
that are left. A lot of families feel that they are at a loss
and that they have no one to turn to, he added. Mr. Sam
informed the committee that he has taken the preservation and
protection of these sites on as a lifelong project. He also
mentioned that he had recently finished up a project for the
Department of Transportation and Public Facilities (DOT&PF) to
restore a mausoleum in Sitka; he'd identified and returned 138
bodies back to their home communities and helped re-inter them.
However, the problem with doing this, he said, is that these
bodies have been placed in unprotected sites, so there is great
potential that these sites will be vandalized and destroyed.
Again, he said that the time has come to protect "our" burial
sites. He concluded by saying that he is in support of HB 187.
MR. SAM, in response to questions, explained that rubbing
headstones for genealogical purposes can do damage; if rubbed
too hard, the stone - even marble - can deteriorate, and in some
cases the headstones can topple easily if care isn't taken.
CHAIR ROKEBERG asked if places such as the memorial house in
Eklutna Village would be included under the definition of
"memorial" or "tomb" in HB 187.
MR. SAM explained that they are considered to be "memorials,"
and the one in Eklutna Village is a Russian Orthodox cemetery
that has blended the best of both worlds: the people have
placed traditional [Native] memorials there as well as church-
related memorials. He said that a lot of families have yearly
ceremonies at these places, and they will bring the deceased
his/her favorite food or a much-cherished object such as a
sewing machine, hunting rifle, or rocking chair and place it on
the gravesite. He offered that "memorial" can have a rather
broad definition.
MR. SAM, in response to a question, said that he did not think
rubbing should be illegal. He said he feels that more good
people need to be attracted to cemeteries in order to cultivate
the desire to preserve and protect these sites. Offering tours
and allowing rubbings are ways to educate the public. One of
the methods he uses is to take the youth in his community to the
cemetery and show them the burial sites of their relatives, and
in this way encourage them to protect and restore these places;
they now have picnics there, and people come and pick up the
trash, and in many other ways the community of Sitka has "taken
ownership" of the cemetery. He said that to him, a sign of a
healthy community is a well-maintained and clean cemetery.
Number 1620
REPRESENTATIVE OGAN inquired whether Mr. Sam knew the outcome of
the situation in the Barrow cemetery, where ocean erosion had
exposed some old graves with well-preserved remains. He noted
that there is a section in HB 187 that says "authorized by law
to engage in the conduct"; he asked whether there is anything in
law that authorizes the type of research engendered by the
Barrow situation.
CHAIR ROKEBERG again mentioned the forthcoming amendment
intended to expand authorizations to include state permits.
MR. SAM remarked that with the federal Native American Graves
Protection and Repatriation Act, if there is a gravesite that
needs to be moved, and if even one family member objects, then
federal law will back the family member's decision. He added,
however, that over the years he has had the opportunity to work
with state and federal agencies in moving graves in a respectful
and dignified manner.
Number 1767
ELMER MAKUA, Cemetery Caretaker, Tongass Tribe, noted that he
has been actively managing and repairing damage to the
gravesites on the north point of Pennock [Island] in addition to
other gravesite areas. He added that he faces problems similar
to those spoken of by Mr. Sam, and that one of the gravesite
areas that he manages is located on an island that has been
subdivided by the local [Ketchikan] government. He explained
that the desecration to these sites comes in the form of
encroachments from developments; folks store their lumber at
these sites, build fences across them, or keep their equipment
in those areas. These acts of desecration are being done
"knowingly," he added, and when the perpetrators are confronted,
they become very defensive. When the State Troopers are
approached for assistance, they are not able to provide any
help; they don't know what to do, and neither do the FBI
officials when they are asked to help.
MR. MAKUA said that his organization has contemplated putting up
fences to protect these areas, but he added that it would be
preferable to keep the areas open so that, as Mr. Sam suggested,
people could be encouraged to take an interest in the historical
significance of the sites. He remarked that although many sites
are protected under the federal laws, there is still great
concern for those sites that are located close to Ketchikan and
which are being desecrated and searched for artifacts. He
opined that the laws in place are not as strong as they need to
be in order to deter people from this behavior.
CHAIR ROKEBERG noted that inclusion of the language in HB 187
that refers to sites that appear to be abandoned should help
motivate law enforcement officers to protect these sites.
Number 1957
DAVID JACOBY, Public Works Director, City of Fairbanks,
testified via teleconference and said in his area, they also
face the problem of desecration caused by people with "4-
wheelers" using the cemetery as "part of their playground" -
taking out headstones, digging holes in graves, or removing
funerary objects such as the angels that Mr. Sam referred to.
Vandalism of this sort creates problems for him and his
employees, he explained, not the least of which includes having
to inform the family members that they must come to the cemetery
and catalogue their losses. These families experience a lot of
emotional distress because of this type of crime, particularly
when the gravesite belongs to a child. The law needs to be in
place, he stated, not so much as a prosecution tool, but as
protection and deterrence against this type of behavior. On
another point, he said that during the winter in Fairbanks, a
crypt is used to store deceased people until the ground thaws,
and some people try to break in (one person actually got the
doors off) to remove the caskets as a joke. This also is quite
an emotional strain on the family, he added, as well as being
costly for the city to try to maintain a cemetery that is not a
"perpetual care cemetery." He closed by offering support for HB
187.
Number 2083
BLAIR McCUNE, Deputy Director, Public Defender Agency (PDA),
Department of Administration, testified via teleconference and
said that [the PDA's] concern about HB 187 is that it is
invariably a class C felony for doing any amount of damage,
desecration, or defacement. In light of the testimony, he
added, this behavior is certainly a serious problem, but [the
PDA] has hope that there would be some way to draft HB 187 so
that if there is only minor defacement, or minor damage, the
younger people who are misguided and do this type of thing don't
end up, invariably, with a felony.
REPRESENTATIVE OGAN, on a different point, brought attention to
the language on page 2, lines 7 and 11, which refers to
abandoned, lost, or neglected sites. He asked how a person
would be able to "knowingly" commit a felony against a gravesite
that is lost; the culpability question comes to mind, he added,
when the gravesite is lost and a person buys the property. He
remarked that he has concern with creating a felony for
something that is lost.
CHAIR ROKEBERG said he is assuming that "lost" means a loss of
title or domain over the actual real property or grounds.
REPRESENTATIVE JAMES pointed out that the language says "or
memorial appears to be abandoned, lost, or neglected"; she
offered if a site is covered over with weeds and trees and it
looks as though no one has been there recently, then it would be
easy to deduce that the site could be an "abandoned, lost, or
neglected" site.
REPRESENTATIVE OGAN commented that given Alaska's history, there
are probably people buried all over Alaska and no one really
knows where the remains are. If a person buys a piece of
property with no visible sign that a "cemetery, tomb, grave, or
memorial" is located on it, and the owner, during the course of
construction or development, uncovers the site, then it becomes
a felony to continue work on the area. Representative Ogan
opined that it could result in a situation of "regulatory
taking."
MS. BACKES, with regard to Representative Ogan's point, said
that the key words in HB 187 are "appears to be", because this
phrase has been used as a defense in the past - that it looked
as though it were neglected and no one cared anymore, and thus
it was all right to remove things from the site or damage things
at the site. To address Representative Ogan's point further,
she explained that when someone buys a piece of property and
then later finds a grave on that property that appears to be
abandoned, lost, or neglected, the person can obtain a permit
from the state to deal with that situation if, for example, the
site needs to be moved or protected. Therefore, although a
person does need to go through the state's permitting process,
there is statutory recourse for the homeowner or construction
company if the property purchased contains a burial/memorial
site. She added that there are also federal laws that deal
with, particularly, historic and archeological types of burial
sites.
Number 2310
CHAIR ROKEBERG, returning to Mr. McCune's point, asked what
other statutes are available for police with regard to those
people who desecrate cemeteries, if the crime is not criminal
mischief in the second degree and [the amount of damage] is less
than $500.
MR. McCUNE responded that the trespass laws are always
available, and that generally, according to [statutory]
valuations, [damage] over $500 is a felony; [damage] between
$500 and $50 is a class A misdemeanor; and [damage] under $50 is
a class B misdemeanor.
REPRESENTATIVE BERKOWITZ added that charging someone for "an
attempt" to commit the crime is one way of lowering the charge
one level.
REPRESENTATIVE JAMES, although she acknowledged that some types
of damage to these sites could be considered insignificant,
surmised that the main focus of HB 187 is to address the cases
of severe damage, as was recounted by the testifiers, most of
which would amount to more than $500 worth of damage.
REPRESENTATIVE BERKOWITZ mentioned that the monetary limits
should be revisited.
MS. BACKES added that a monetary value cannot be determined for
the emotional damage done to a family and the insult done to a
person's memory through these acts of vandalism and desecration.
REPRESENTATIVE OGAN suggested that perhaps the $500 limit could
be removed from HB 187 and the offense kept at a misdemeanor
level.
CHAIR ROKEBERG opined that this would be a problem because HB
187 is drafted to fit within the criminal mischief statute, and
these acts are simply being added to what constitutes criminal
mischief in the second degree.
Number 2448
REPRESENTATIVE OGAN suggested that some sort of penalty should
be considered for those people who do less than $500 worth of
damage because even seemingly insignificant acts of damage can
do emotional harm to the family.
REPRESENTATIVE JAMES opined that the purpose of HB 187 is to
stop people from committing these acts of vandalism and
desecration to begin with, not necessarily to collect money from
perpetrators or put them in jail after the damage has been done.
For this reason, if the penalty is too small, she added, it
won't make any difference at all - the behavior will continue.
REPRESENTATIVE OGAN commented that most of the people doing the
damage probably won't know that [this type of behavior] is
against the law.
CHAIR ROKEBERG mentioned that there might also be the
possibility of dropping the level of offense down to the "third
and fourth degree," if the committee wishes.
TAPE 01-60, SIDE B
Number 2486
MS. BACKES remarked that she had not specifically considered the
penalties when drafting HB 187, but she added that applying the
penalties associated with a class C felony - up to five years in
jail and a $50,000 fine - is not unheard of for similar
situations in other states.
REPRESENTATIVE BERKOWITZ remarked that he understood the concern
about being too harsh on youth who are simply doing "dumb
things," and he raised the point that there is always suspended
imposition of sentence (SIS) available for first-time offenders.
But, he added, it seems to him that a felony is appropriate in
this area, and he opined that the $500 threshold is low enough
that it will be reached in most instances. In addition, he said
he has confidence that prosecutors will exercise discretion when
the conduct is de minimis, and not charge as a felony but charge
as a misdemeanor instead. He went on to explain that just
because a prosecutor has the charge of felony desecration of
cemetery available, it does not preclude the prosecutor from,
for example, charging as criminal mischief in the fourth degree
for stealing the park bench that's next to the gravestone.
CHAIR ROKEBERG said the committee believes that prosecutors can
use the "lesser included forms of mischief."
REPRESENTATIVE BERKOWITZ confirmed this interpretation of the
statute.
Number 2371
CHAIR ROKEBERG, after closing public testimony on HB 187, made a
motion to adopt Amendment 1, which would insert "or state
permit" after "law" on page 2, line 18, such that it would then
read "authorized by law or state permit to engage in the
conduct." He explained that this change has been recommended by
the University of Alaska, and would expand the affirmative
defense provision to include activity at "archeological digs."
REPRESENTATIVE BERKOWITZ asked what authority the state has to
engage in this conduct.
Number 2320
WENDY REDMAN, Vice President for University Relations,
University of Alaska, explained that federal law requires that
the state issue permits for any kind of activity relating to
excavation, identification, and reclamation of any kind of
gravesites. Thus, when roads are being laid or erosion is
taking place in certain areas, the archeological department of
the university is contacted and permits are issued for
university people to work with local authorities on preservation
and repatriation activities. She said that although local
tribal authorities could object to the activities and put a stop
to the permit, there have not been any conflicts or
disagreements with tribal entities or communities for many, many
years.
MS. BACKES added that the Department of Natural Resources (DNR)
is responsible for issuing these permits.
Number 2230
CHAIR ROKEBERG asked whether there were any objections to
Amendment 1. There being no objection, Amendment 1 was adopted.
Number 2218
REPRESENTATIVE JAMES moved to report HB 187, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 187(JUD) was
reported from the House Judiciary Standing Committee.
CHAIR ROKEBERG called an at-ease from 3:48 p.m. to 3:49 p.m.
SB 103 - ELECTION CAMPAIGNS AND LEGISLATIVE ETHICS
Number 2190
CHAIR ROKEBERG announced that the committee would continue the
hearing on CS FOR SENATE BILL NO. 103(FIN), "An Act relating to
election campaigns and legislative ethics."
Number 2183
CHAIR ROKEBERG made a motion to adopt Amendment 1 [text
previously provided], which would provide for combining the
financial disclosure statements of public officials and
legislators into one form. He reminded members that it has been
suggested by the Alaska Public Offices Commission (APOC) that
the language in Amendment 1 would be more suitably placed in AS
39.50 and AS 24.60, rather than AS 15.13.030.
REPRESENTATIVE JAMES said she is not convinced that it is
possible to create a single form for everybody - there will
still have to be two forms to accommodate both legislators and
public officials. But, she suggested, everything requested only
of legislators could be placed on one form.
CHAIR ROKEBERG said he thinks that the three sections specific
to legislators could be placed on a single form along with the
instructions that these sections need only be filled out by
legislators.
Number 2100
REPRESENTATIVE JAMES, with regard to the APOC's suggested
change, made a motion to conceptually amend Amendment 1 "to move
it where it belongs." There being no objection, the conceptual
amendment to Amendment 1 was adopted.
Number 2078
CHAIR ROKEBERG asked whether there were any objections to
Amendment 1, as amended. There being no objection, Amendment 1,
as amended, was adopted.
Number 2071
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 2,
which read [original punctuation provided]:
Page 5, lines 3-5,
Delete all materials
Number 2056
CHAIR ROKEBERG objected.
REPRESENTATIVE BERKOWITZ explained that Amendment 2 deletes
language which states that campaign signs for elections that
have already taken place have no monetary value.
CHAIR ROKEBERG, in defense of his objection to Amendment 2, said
placing value on campaign signs from elections that have already
taken place is a meaningless valuation.
REPRESENTATIVE JAMES noted that some signs, particularly the big
signs, do have quite a bit of residual value. She added that as
a bankruptcy trustee, she herself has sold some of the larger,
used signs - from a bankrupt real estate firm - for a
considerable amount of money.
REPRESENTATIVE BERKOWITZ, in defense of Amendment 2, added that
some of the larger Corex signs (the 4x8 size) can cost $100. He
said it is important to acknowledge that campaign signs do have
value; he advocated that the status quo be maintained with
regard to the treatment and valuation of campaign signs via the
adoption of Amendment 2.
Number 1920
A roll call vote was taken. Representative Berkowitz voted for
Amendment 2. Representatives James, Ogan, Coghill, Meyer, and
Rokeberg voted against it. Therefore, Amendment 2 failed by a
vote of 1-5.
Number 1912
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 3,
which read [original punctuation provided]:
Page 6, lines 2-9,
Delete all materials
CHAIR ROKEBERG objected.
REPRESENTATIVE BERKOWITZ explained that Amendment 3 strikes
language that states a contribution does not include two or
fewer mass mailings before each election by each political party
describing the slate of candidates for election, which may
include photographs, biographies, and information about the
parties candidates; he opined that this exception to the
definition of contribution presents a lot of opportunities to
"cook up mischief." It could be a slate of candidates
particular to, for example, a House district where there is one
Senate candidate and one House candidate, or it could be
areawide; the term mass mailings "opens the door" to exceed the
contribution limits imposed by campaign finance reform.
REPRESENTATIVE JAMES offered that the language regarding mass
mailings could simply be made more specific rather than deleting
it altogether as is proposed via Amendment 2. She noted that
the problem exists in both parties; if they wished to send out
something with a slate of their candidates in the general
election, then the cost would have to be divided among all the
candidates and be counted as a contribution, and if the party
had already given the maximum to any individual candidate, then
the mass mailing could not be done because the party would not
be able to leave that individual candidate out. She said she
thinks parties ought to be allowed to send out mass mailings of
this sort without the candidates listed having to claim it as a
campaign contribution from the party.
REPRESENTATIVE BERKOWITZ remarked that retention of the language
in SB 103 regarding mass mailings would be moving away from the
campaign limits imposed on parties. He went on to say: "It
looks like 'two or fewer mass mailings' doesn't describe when
those mailings can occur. I have been the subject of mass
mailings from the other party and, frankly, it seems to me that
it's an underhanded way for the opposing candidate to evade
responsibility for a message."
REPRESENTATIVE JAMES said that she would be perfectly willing to
limit it to one mass mailing prior to the general election.
REPRESENTATIVE OGAN noted that the language specifies a party's
slate of candidates.
Number 1771
REPRESENTATIVE BERKOWITZ countered that describing a slate of
candidates doesn't prohibit mention of the other party's
opposing candidate. "You can say 'Vote for Joe Smith; he's a
much better guy than Jane Doe, who's a terrible human being and
has done all these atrocious things,'" he added.
REPRESENTATIVE JAMES commented that although she is willing to
offer an amendment to Amendment 3 that would limit the mass
mailings to one, she observed that it would not have the votes
to carry. She also noted that she had originally thought the
language specified unlimited mass mailings, and since this is
not the case, she finds the current language acceptable.
REPRESENTATIVE BERKOWITZ, on a technical point, said that the
language regarding mass mailings says, "by each political
party"; since there are more than two political parties, he
suggested that the language should read "by a political party".
He then asked how this provision affects nonpartisan candidates.
CHAIR ROKEBERG, on Representative Berkowitz's technical point,
opined that the language used is simply a choice of grammar.
REPRESENTATIVE JAMES, in response to Representative Berkowitz's
question, offered that the language would have no effect on
nonpartisan candidates because they don't belong to any party
that would include them on a slate of candidates in a mass
mailing.
Number 1630
A roll call vote was taken. Representative Berkowitz voted for
Amendment 3. Representatives James, Ogan, Coghill, Meyer, and
Rokeberg voted against it. Therefore, Amendment 3 failed by a
vote of 1-5.
Number 1623
REPRESENTATIVE BERKOWITZ made a motion to adopt [Amendment 4A],
which read [original punctuation provided]:
Page 7, lines 1-5,
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CHAIR ROKEBERG objected for purposes of discussion.
REPRESENTATIVE BERKOWITZ explained that the provision regarding
communications of $500 or less, which would be deleted by
[Amendment 4A], is confusing, expensive, and unnecessary.
CHAIR ROKEBERG noted that he did not understand [the purpose of]
this provision.
REPRESENTATIVE MEYER commented that it would be difficult to
determine a value for these communications.
Number 1473
A roll call vote was taken. Representatives James, Berkowitz,
and Rokeberg voted for [Amendment 4A]. Representatives Ogan,
Coghill, and Meyer voted against it. Therefore, [Amendment 4A]
failed by a vote of 3-3.
Number 1462
REPRESENTATIVE OGAN made a motion to adopt Conceptual Amendment
4B, such that "per year" would be inserted after "$500 or less"
on page 7, line 1. The end result would read: "communications
with a value of $500 or less per year". He explained that this
would place this allowance for communications on the same par
with individuals who are allowed to give $500 or less per year.
REPRESENTATIVE JAMES, for the record, said:
When we passed campaign finance reform, one of the
main purposes of the campaign reform was to eliminate
the contributions by corporations, labor
organizations, unincorporated business and trade
associations, and nonprofit corporations. Now we're
adding it back in - up to $500 a year.
REPRESENTATIVE MEYER mentioned that he thinks it is fine to
allow these entities to contribute something with a little
monetary value, and that it's to be expected.
REPRESENTATIVE BERKOWITZ requested clarification that with the
provision regarding communications, it would be OK for labor
unions, should they so choose, to place 4x8 signs (that cost
less than $500) in front of their halls saying, "Dear Members,
We Love Ethan Berkowitz!" If so, he said, he sees [this
allowance] as being a little bit problematic.
REPRESENTATIVE JAMES agreed.
CHAIR ROKEBERG offered that if it were simply a matter of
issuing an endorsement slate in a newsletter, it would be
acceptable; he reminded members that [the APOC] has indicated
that this is already permissible under current law. He then
indicated that the entire provision in SB 103 regarding
communications would get further scrutiny in the House Finance
Committee.
Number 1299
CHAIR ROKEBERG asked whether there were any objections to
Conceptual Amendment 4B. There being no objection, Conceptual
Amendment 4B was adopted
Number 1286
REPRESENTATIVE BERKOWITZ made a motion to adopt [Amendment 5A],
which read [original punctuation provided]:
Page 9, line 31,
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Page 10, lines 1-5,
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REPRESENTATIVE BERKOWITZ explained that [Amendment 5A] deletes
the ability of legislators or legislative staff to work on
behalf of a state or federal constitutional amendment.
Notwithstanding the previously heard argument that the
legislature should continue to be involved in proposed
constitutional amendments that originate as legislative
resolutions, he pointed out that the language he is attempting
to delete also allows involvement in proposed federal
constitutional amendments, which, he observed, the legislature
has nothing to do with.
REPRESENTATIVE JAMES said she believed that as legislators, they
had an obligation to explain their position on issues, whenever
possible, to the public. She added, however, that she has a
problem with the concept of utilizing governmental resource
towards this end. If any governmental resources are used, she
continued, they should be very limited. She went on to say that
if she were to spend a small portion of her workday in support
or opposition of a proposed constitutional amendment, it would
be difficult to sort out which portion of her salary, which she
indicated was often quite small, is to be cataloged towards that
activity. She opined that the allowance for this kind of
activity should be a little broader for legislators, but not as
broad as this provision of SB 103 is proposing; she said she did
not think that legislators should be out campaigning either in
support of or opposition to proposed constitutional amendments.
On the point brought up by Ms. Miles that legislators are
allowed to become part of a group working for or against
proposed constitutional amendments, Representative James said
she disagrees with the concept and thinks this activity would be
"purely unethical."
Number 1148
REPRESENTATIVE OGAN asked whether Representative Berkowitz would
consider a friendly amendment [in place of Amendment 5A] to
insert "incidental" in front of "use of governmental resources"
on page 9, line 31. This would eliminate the appearance and
possibility that large amounts of governmental resources could
be expended in support of or opposition to proposed
constitutional amendments, he explained.
REPRESENTATIVE BERKOWITZ agreed that the addition of
"incidental" to this provision would alleviate some of his
concerns, but he cautioned that although he has no qualms that
any current legislators will take advantage of this provision in
SB 103, he still has concerns that future legislators could
misuse this provision. He posited that this is one of the worst
provisions in SB 103.
Number 0975
A roll call vote was taken. Representatives Meyer and Berkowitz
voted for [Amendment 5A]. Representatives Coghill, James, Ogan,
and Rokeberg voted against it. Therefore, [Amendment 5A] failed
by a vote of 2-4.
Number 0960
REPRESENTATIVE OGAN made a motion to adopt Amendment 5B, to
insert "incidental" in front of "use of governmental resources"
on page 9, line 31.
REPRESENTATIVE BERKOWITZ made a motion to amend Amendment 5B,
such that "or federal" would be removed from page 10, line 2.
REPRESENTATIVE JAMES indicated she is in favor of the amendment
to Amendment 5B.
CHAIR ROKEBERG objected to the amendment to Amendment 5B.
REPRESENTATIVE BERKOWITZ withdrew the amendment to Amendment 5B
and indicated that he would offer it again, separate from
Amendment 5B.
Number 0900
CHAIR ROKEBERG asked whether there were any objections to
Amendment 5B. There being no objection, Amendment 5B was
adopted.
Number 0895
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 5C,
which would strike "or federal" from page 10, line 2.
REPRESENTATIVE OGAN objected. He remarked that with the
addition of the term "incidental", he did not have a problem
with activity related to federal constitutional amendments.
CHAIR ROKEBERG reminded members that federal constitutional
amendments come before the legislature for ratification or
rejection; because this is the process, he thinks it is entirely
appropriate that legislators gather feedback from their
constituents regarding any proposed federal constitutional
amendments.
REPRESENTATIVE BERKOWITZ withdrew Amendment 5C.
Number 0821
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 6,
which read [original punctuation provided]:
Page 5, lines 6-11,
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CHAIR ROKEBERG commented that this addresses language that Ms.
Miles previously expressed concerns over.
REPRESENTATIVE BERKOWITZ then noted that the language deleted by
Amendment 6 was tied to the language regarding the use of
governmental resources, and was dependent upon the adoption of
Amendment 5A; for this reason, Representative Berkowitz withdrew
Amendment 6.
Number 0766
CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 7,
"in the event that a member of the legislature passes away, that
his surviving spouse can claim the proceeds of the POET [public
office expense term] account, rather than have to dispose of
it."
REPRESENTATIVE OGAN said that as the legislator with the most
recent brush with mortality, he has to declare a conflict.
REPRESENTATIVE JAMES said she opposes Conceptual Amendment 7
because she thinks that the whole concept of putting aside money
in the POET account is that it be used for legislative purposes.
She added that it seems to her that if the money is not used for
legislative purposes, the law already requires that the money be
given away. Therefore, in the event of a legislator's death,
the surviving spouse should comply with this requirement and
give away any money remaining in the POET account.
Number 0618
A roll call vote was taken. Representatives Meyer and Rokeberg
voted for Conceptual Amendment 7. Representatives Berkowitz,
James, Coghill, and Ogan voted against it. Therefore,
Conceptual Amendment 7 failed by a vote of 2-3.
Number 0615
REPRESENTATIVE JAMES moved to report CSSB 103(FIN), as amended,
out of committee with individual recommendations and the
accompanying fiscal note.
Number 0607
REPRESENTATIVE BERKOWITZ objected, and for the record said, "We
are retreating from the campaign finance reform with this; there
are some important cleanups that are part of it, but I think
we've gone too far, and I think we've opened ourselves up for
undue criticism by some of the measures we've taken."
Number 0600
A roll call vote was taken. Representatives James, Coghill,
Meyer, and Rokeberg voted to report CSSB 103(FIN), as amended,
out of committee. Representative Berkowitz voted against it.
[Representative Ogan was unable to vote on the motion because he
attended via teleconference.] Therefore, HCS CSSB 103(JUD) was
reported from the House Judiciary Standing Committee by a vote
of 4-1.
Number 0570
CHAIR ROKEBERG announced that the committee needed to adopt a
House Concurrent Resolution to change the title of SB 103.
Number 0560
REPRESENTATIVE JAMES made a motion to adopt the proposed House
Concurrent Resolution, version 22-LS0875\A, Cramer, 4/4/01, as a
work draft. There being no objection, it was so ordered.
Number 0550
REPRESENTATIVE JAMES moved to report the proposed House
Concurrent Resolution, version 22-LS0875\A, Cramer, 4/4/01, out
of committee with individual recommendations. There being no
objection, the House Concurrent Resolution [which later became
HCR 15] was reported from the House Judiciary Standing
Committee.
[HCS CSSB 103(JUD) was reported from committee.]
ADJOURNMENT
Number 0547
There being no further business before the committee, the House
Judiciary Standing Committee meeting was recessed at 4:21 p.m.
until 5 p.m. on 4/10/01.
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