04/16/2003 08:15 AM House JUD
| Audio | Topic |
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 16, 2003
8:15 a.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 45(JUD)
"An Act relating to the Legislative Budget and Audit Committee."
- MOVED HCS CSSB 45(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 102
"An Act relating to concealed deadly weapons."
- HEARD AND HELD
HOUSE BILL NO. 245
"An Act relating to certain suits and claims by members of the
military services or regarding acts or omissions of the
organized militia; relating to liability arising out of certain
search and rescue, civil defense, homeland security, and fire
management and firefighting activities; and providing for an
effective date."
- BILL HEARING POSTPONED
PREVIOUS ACTION
BILL: SB 45
SHORT TITLE:LB&A CRIMES AND COOPERATION
SPONSOR(S): SENATOR(S) GREEN
Jrn-Date Jrn-Page Action
01/29/03 0075 (S) READ THE FIRST TIME -
REFERRALS
01/29/03 0075 (S) JUD, FIN
03/12/03 (S) JUD AT 1:30 PM BELTZ 211
03/12/03 (S) Heard & Held
MINUTE(JUD)
03/19/03 (S) JUD AT 1:30 PM BELTZ 211
03/19/03 (S) Moved CSSB 45(JUD) Out of
Committee
MINUTE(JUD)
03/24/03 0570 (S) JUD RPT CS 2DP 2NR SAME TITLE
03/24/03 0570 (S) DP: SEEKINS, THERRIAULT;
03/24/03 0570 (S) NR: ELLIS, FRENCH
03/24/03 0570 (S) FN1: ZERO(ADM); FN2:
ZERO(LAW)
03/26/03 0595 (S) FIN REFERRAL WAIVED
03/28/03 0614 (S) RULES TO CALENDAR 3/28/2003
03/28/03 0614 (S) READ THE SECOND TIME
03/28/03 0615 (S) JUD CS ADOPTED UNAN CONSENT
03/28/03 0615 (S) ADVANCED TO THIRD READING
3/31 CALENDAR
03/31/03 0644 (S) READ THE THIRD TIME CSSB
45(JUD)
03/31/03 0644 (S) RETURN TO SECOND FOR AM 1
UNAN CONSENT
03/31/03 0644 (S) AM NO 1 OFFERED BY FRENCH
03/31/03 0644 (S) AM 1 DIVIDED
03/31/03 0645 (S) AM NO 1A FAILED Y7 N10 E3
03/31/03 0645 (S) AM NO 1B FAILED Y7 N10 E3
03/31/03 0645 (S) AUTOMATICALLY IN THIRD
READING
03/31/03 0646 (S) PASSED Y12 N5 E3
03/31/03 0646 (S) FRENCH NOTICE OF
RECONSIDERATION
04/02/03 0669 (S) RECONSIDERATION NOT TAKEN UP
04/02/03 0671 (S) TRANSMITTED TO (H)
04/02/03 0671 (S) VERSION: CSSB 45(JUD)
04/04/03 0759 (H) READ THE FIRST TIME -
REFERRALS
04/04/03 0759 (H) JUD, FIN
04/07/03 (H) JUD AT 1:00 PM CAPITOL 120
04/07/03 (H) <Bill Hearing Postponed>
04/16/03 (H) JUD AT 8:00 AM CAPITOL 120
BILL: HB 102
SHORT TITLE:CONCEALED DEADLY WEAPONS LEGAL
SPONSOR(S): REPRESENTATIVE(S)CROFT
Jrn-Date Jrn-Page Action
02/14/03 0215 (H) READ THE FIRST TIME -
REFERRALS
02/14/03 0215 (H) STA, JUD
02/19/03 0257 (H) COSPONSOR(S): GATTO
03/13/03 (H) STA AT 8:00 AM CAPITOL 102
03/13/03 (H) Scheduled But Not Heard
03/27/03 (H) STA AT 8:00 AM CAPITOL 102
03/27/03 (H) Heard & Held
03/27/03 (H) MINUTE(STA)
03/28/03 0688 (H) COSPONSOR(S): ANDERSON
04/07/03 0830 (H) COSPONSOR(S): DAHLSTROM, KOTT
04/08/03 (H) STA AT 8:00 AM CAPITOL 102
04/08/03 (H) Heard & Held
MINUTE(STA)
04/10/03 (H) STA AT 9:00 AM CAPITOL 102
04/10/03 (H) Moved CSHB 102(STA) Out of
Committee -- Time Change --
MINUTE(STA)
04/14/03 0960 (H) STA RPT CS(STA) 3DP 3NR
04/14/03 0960 (H) DP: GRUENBERG, DAHLSTROM,
HOLM;
04/14/03 0960 (H) NR: SEATON, BERKOWITZ,
WEYHRAUCH
04/14/03 0960 (H) FN1: ZERO(LAW)
04/14/03 0977 (H) COSPONSOR(S): HOLM, SEATON
04/16/03 1017 (H) COSPONSOR(S): SAMUELS, MASEK
04/16/03 (H) JUD AT 8:00 AM CAPITOL 120
WITNESS REGISTER
SENATOR LYDA GREEN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 45.
PAT DAVIDSON, Legislative Auditor
Division of Legislative Audit
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of SB 45 by
responding to questions.
STEPHEN BRANCHFLOWER, Director
Office of Victims' Rights (OVR)
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: During discussion of SB 45, suggested
changes and responded to questions.
REPRESENTATIVE ERIC CROFT
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 102.
BRIAN JUDY, Alaska State Liaison
Institute for Legislative Action
National Rifle Association of America (NRA)
Sacramento, California
POSITION STATEMENT: Testified in support of HB 102.
ACTION NARRATIVE
TAPE 03-40, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 8:15 a.m. Representatives
McGuire, Ogg, Samuels, Gara, and Gruenberg were present at the
call to order. Representatives Anderson and Holm arrived as the
meeting was in progress.
SB 45 - LB&A CRIMES AND COOPERATION
Number 0039
CHAIR McGUIRE announced that the first order of business would
be CS FOR SENATE BILL NO. 45(JUD), "An Act relating to the
Legislative Budget and Audit Committee."
Number 0044
SENATOR LYDA GREEN, Alaska State Legislature, sponsor, noted
that current law provides that the Legislative Budget and Audit
Committee has the power to require all state officials and
agencies of state government to give full cooperation to the
Legislative Budget and Audit Committee or its staff in
assembling and furnishing requested information. Unfortunately,
the current law is unenforceable, she opined, because it lacks
penalties for those who are uncooperative or who seek to
undermine the work of the Legislative Budget and Audit
Committee. Therefore, the purpose of SB 45 is to provide
prosecutors with the necessary tools to deter and punish those
who hinder the investigative work of the Legislative Budget and
Audit Committee. The proposed legislation also clarifies the
process by which privilege is claimed and the process by which
it is determined, she added.
SENATOR GREEN posited that when the legislature created the
Legislative Budget and Audit Committee, it was envisioned that
it would have full access to all information necessary to carry
out its work. When legislators request reports from or reviews
of an agency, it is important for the Legislative Budget and
Audit Committee to have all the cooperation it needs. Senate
Bill 45 will ensure that this occurs. She noted that there is a
proposed House committee substitute (HCS) for members'
consideration.
Number 0176
REPRESENTATIVE SAMUELS moved to adopt the proposed HCS for SB
45, Version 23-LS0205\U, Luckhaupt, 4/8/03, as the work draft.
There being no objection, Version U was before the committee.
REPRESENTATIVE GARA surmised that SB 45 was engendered by some
circumstance wherein "things didn't work out well in the past,"
and noted that he would like to hear more about that situation.
He said that he understands the sponsor's concern and applauds
her for trying to do something about it. He mentioned, however,
that he has a few concerns with [Version U], and directed
attention to the top of page 2, which describes what hindering
the Legislative Budget and Audit Committee process would entail.
He surmised that one could be convicted of hindering if one
either discouraged or prevented another from fully cooperating
with the process. He said he is wondering whether the following
example would cause someone to be convicted under SB 45:
Legislative Budget and Audit [Committee] comes to,
well, let's just say, Representative Samuels's office.
And Representative Samuels is working on 30 different
issues and all of them are priorities to him including
the Legislative Budget and Audit issue, and so he
tells his staff, "Well, there are these three other
things that affect school kids, that I have to deal
with right now; put the Legislative Budget and Audit
thing fifth in line." And it takes an extra week for
him to get the information to Legislative Budget and
Audit. Has he discouraged or prevented another from
giving full cooperation to the legislative auditor?
It seems like full cooperation would mean immediate
cooperation, and it seems like he would have committed
a crime.
SENATOR GREEN noted that the term "full cooperation " is
currently in statute - AS 24.20.201 - regarding the Legislative
Budget and Audit Committee; thus that term is merely replicated
in Version U. With regard to Representative Gara's example, she
suggested that had it referred to a state agency rather than
another legislator, it would be more pertinent to the
discussion. She opined that the intention is to ensure that
requested information is forthcoming, and noted that a failure
to provide full cooperation must rise to a certain level in
order to be prosecuted. It can't be, "Oh, I think you have
hindered me, therefore, ... I'm going to penalize you," she
assured members, adding that the requested information, once
received, goes through a process.
REPRESENTATIVE GARA remarked that almost all prosecutors
prosecute the law blindly; however, since, as in all
professions, there is the possibility of there being "one bad
apple," it is the legislature's job to ensure that there is no
room for abuse in the legislation it passes. The term, "full
cooperation", he opined, could leave room for a prosecutor with
a politically motivated agenda to abuse the law by portraying a
situation such as he used in his example as not providing "full
cooperation". He pondered whether changing the term to "good
faith cooperation", or something similar, would allay his
concern and still achieve the sponsor's goal. He said his
concern is that "full cooperation" says that 95 percent
cooperation or really-good-but-not-full cooperation would be
prosecutable under Version U.
Number 0635
PAT DAVIDSON, Legislative Auditor, Division of Legislative
Audit, Alaska State Legislature, explained that "hindering" as
used in the bill refers to a failure to comply with a request
from the legislative auditor or the legislative fiscal analyst.
The language doesn't refer to either her staff or the fiscal
analyst's staff being hindered; if her or her counterpart's
staff is hindered, "they move it up the chain of command."
Thus, if either the legislative auditor or the legislative
fiscal analyst has had to request information from an agency,
"it has already gone through the chain of command, and we've
already decided that this is critical information to completing
an audit" or analysis. She opined that the language in Version
U ensures that at least a couple of internal processes would
have already taken place before someone is subject to
prosecution and penalties.
REPRESENTATIVE GARA replied:
I completely understand that [the Division of
Legislative Audit] doesn't intend to have this statute
enforced abusively, but if we allow the language to
allow a future person at [the Division of Legislative
Audit] to have the statute enforced abusively, then
we've now created mischief in the statutes. So, I
understand that you have circumstances in the past
that you're trying to address, and that you currently
do your job very well, and I think [the Division of
Legislative Audit] does a great job; ... I'm just
concerned about passing a statute that allows for
mischief in the future.
REPRESENTATIVE OGG, turning to Section 2 of Version U, opined
that it reads awkwardly, and suggested that it could be
clarified a little bit.
Number 0819
STEPHEN BRANCHFLOWER, Director, Office of Victims' Rights (OVR),
Alaska State Legislature, referred to Representative Gara's
concern regarding "full cooperation", and said that given his
background as a prosecutor, he understands completely the
concern that someone bent on mischief could cause mischief via
the language currently being used. He suggested that one
solution would be to change the culpable mental state - page 2,
line 1 - from "knowingly" to "intentionally", which, he
explained, requires a specific intent and is defined in AS
11.81.900. He acknowledged that another solution would be to do
as Representative Gara suggests, change "full cooperation" to
"good faith cooperation".
MR. BRANCHFLOWER said that SB 45 is intended to address
situations in which a supervisor directs a subordinate to
disregard requests from the Legislative Budget and Audit
Committee or only provide partial compliance. He elaborated:
I have seen that in my career, am aware of instances
where that has occurred, and, as a result of such an
order, information was not provided. It is
particularly bad when the person to whom such a
direction is made is an exempt employee or a partially
exempt employee. And, of course, all lawyers within
the Department of Law are partially exempt, so those
are the people who are oftentimes aware of information
that would be of great use to the [Legislative Budget
and Audit Committee] or the fiscal analyst.
MR. BRANCHFLOWER noted that the penalty for noncompliance is a
class B misdemeanor, and that one of the consequences of being
convicted is that the person immediately looses his/her position
and is not eligible for rehire. He opined that this consequence
provides a great disincentive to violate the statute, and puts
teeth into the current statute.
MR. BRANCHFLOWER then addressed Representative Ogg's concern
regarding the language on page 2, line 17. He acknowledged that
the language is a little cumbersome and indefinite, and that it
could probably be smoothed out. He said that the intent of SB
45 is a good one, and that after looking in other areas of
statute to find language that would put some teeth into AS
24.20.201, he'd realized that language would have to be tailored
to fit the specific situation. In response to a question, he
confirmed that he'd looked at the statute pertaining to
legislative leadership's subpoena power, but had found that that
particular statute alone would not be sufficient.
Number 1076
MR. BRANCHFLOWER said that to his knowledge, the Legislative
Budget and Audit Committee has never gone to court to challenge
someone's refusal to provide information. Proposed AS
24.20.201(c) will provide a mechanism by which to address claims
of privilege. He then mentioned that AS 39.90.140(3), which he
called the "whistleblower statute," is also being amended by SB
45, in that the definition of, "matter of public concern" will
now include, "interference or any failure to cooperate with an
audit or other matter with the authority of the Legislative
Budget and Audit Committee". He suggested that this latter
change will promote truth telling by employees who "have to make
tough decisions when they're told not to cooperate."
REPRESENTATIVE GARA asked what steps, currently, the Legislative
Budget and Audit Committee can take to force compliance. He
suggested that if it involves a court process, then rather than
adding a criminal statute, perhaps that court process could
simply be expedited. He also reiterated that he would like to
know more about the circumstances which have engendered SB 45.
MS. DAVIDSON explained that for the most part, the Division of
Legislative Audit does almost all of its work in the executive
and judicial branches of government. An audit process involves
interviewing agency people and reviewing records; it is very
much an investigative process. She elaborated:
Typically what happens is, when we are denied
information that we know of -- and that's part of this
problem: ... if we ask for something and somebody
says, "We don't have it," if they're lying to us, we
may find it in other ways, but then again we may not.
And whether that piece of information is critical to
the audit objective, it depends upon what it is. So
you'll interview people. If people don't want to talk
to you or they don't want to give you the information
- [for example] they're claiming it's confidential -
... we move it up the chain of command. There's a
discussion; we would involve the Department of Law,
saying ..., "Statute requires cooperation and
Legislative Audit has access to records whether
they're confidential or not." And sometimes they'll
listen to the Department of Law, and sometimes they
continue to be stubborn.
Number 1263
The Legislative Budget and Audit Committee actually
does have subpoena powers; however, if you're going to
go to a subpoena, you have to know what you're looking
for. And in an audit process, you can't, oftentimes,
specifically identify what it is that you're looking
for, because you want to know, "Has 'this' ever
happened or has 'that' ever happened." So trying to
audit by subpoena would be an enormously difficult
process. And that all has to do with whether or not
you know that you're being denied.
I think that ... this bill does ... two things.
Number one, ... through ... adding ... [that]
cooperating with Legislative Audit is part of the
whistleblower [statute], it provides comfort for
employees to talk to us - talk to us truthfully. The
second thing that it does is, it would create a
penalty for anybody or their supervisor's trying to
hinder that cooperation. And so what it does, as I
look at the audit process, is it is going to make it
more efficient, it's going to make it more
streamlined, and I think Mr. Branchflower used the
[term] "sentinel effect." It's like, "Yes, it's out
there; yes, you're going to cooperate; ... let's get
through it."
SENATOR GREEN, with regard to the circumstances that engendered
SB 45, said that a friend of hers, whose agency was asked to
supply information to the Legislative Budget and Audit
Committee, was specifically told by his supervisor to not
cooperate. Because this friend was an exempt employee and was
putting his credentials on the line for lying, he looked into
the current statute to see what sort of protections would be
available to him for disobeying that order and what sort of
penalties his supervisor would be subject to for giving the
order. What he discovered was that he had no protection and his
supervisor would not be subject to any penalties.
Number 1384
SENATOR GREEN said that the purpose of SB 45 is to address
situations in which somebody, for whatever reason, has decided
not to cooperate with the legislative auditor or the legislative
fiscal analyst. She offered that if information is being
requested, there has already been a considerable amount of
discussion to determine that, indeed, that information is
critical to a particular investigation. She noted that there
have been recent audits involving Medicaid and the Division of
Agriculture, and that entities with sunset dates are all
audited. These audits provide valuable information that can
influence policy decisions and offer insight pertaining to
whether an entity's sunset date should be extended.
SENATOR GREEN, in conclusion, said that because the legislature
must rely on good, truthful information, the goal of SB 45 is to
ensure that people will tell the truth, that they will be
forthcoming, and that they won't prevent someone else from
providing information.
REPRESENTATIVE GRUENBERG, after mentioning that he has had to
use the threat of subpoena to get information from someone in
the administration and that perhaps the legislature's subpoena
policy should be scrutinized during the interim, agreed that it
is essential for the legislature to have everybody's
cooperation.
The committee took an at-ease from 8:44 a.m. to 8:47 a.m.
CHAIR McGUIRE closed public testimony on SB 45.
Number 1640
REPRESENTATIVE OGG made a motion to adopt Conceptual Amendment
1: delete from page 2, lines 17-18, the words, "if the
information is requested from a department or agency,". There
being no objection, Conceptual Amendment 1 was adopted.
REPRESENTATIVE OGG asked whether the Legislative Budget and
Audit Committee has the ability to grant immunity.
MR. BRANCHFLOWER replied that AS 24.25.070 addresses that issue
and says that the legislature can grant immunity. However, if
the matter goes to court on the basis of reviewing the assertion
of the privilege, then the rules governing the judicial branch
of government would apply. He opined that at that point, it
might be problematic to grant immunity and thus it would become
a question for the Department of Law to address.
REPRESENTATIVE GARA, on the issue of subpoenas, said that he
disagrees with the assertion that a subpoena has to specifically
ask for a specific document. Historically, subpoenas have been
used very effectively to ferret out the truth. One can ask for
categories of documents, documents relevant to a subject; one
does not have to point out a particular document. He opined
that the existing subpoena provision would be a very effective
tool if it is used right.
REPRESENTATIVE GARA then turned attention to page 2, line 4. He
indicated that in addition to the changes suggested by himself
and Mr. Branchflower, there is another issue to consider. He
elaborated:
We need to make sure that legislative audits are also
done properly, and historically they have been - and
I've actually been very impressed with the work of
legislative auditors in the past - but right now you
will commit a crime if you don't furnish requested
information to the committee or staff. I suppose
requested information could be completely irrelevant
information if we had a bad legislative auditor or
legislative staff member working on a project.
I suppose we could be investigating, for example, an
issue of overspending by Representative Samuels's
office, and the requested information could be,
"Representative Samuels, please give me every contact
you've ever had with a voter over you're last ...
twenty years in office." And Representative Samuels
would say, "Well gosh, what does that request have to
do with your audit?"
And so, I think we probably also have to make sure the
requests are proper. And you could probably do that
... by changing "furnishing requested information" to
"furnishing relevant requested information". I think
we really have to sit down and make sure that we're
doing what we intend here, so if we changed it to
"furnishing relevant requested information", then that
would protect the person [the information is] being
requested from. ...
Number 1957
CHAIR McGUIRE surmised, then, that are three possible changes to
discuss: Page 2, line 1, change "knowingly" to "intentionally";
page 2, line 3, change "full cooperation" to "good faith
cooperation"; page 2, line 4, change "furnishing requested
information" to "furnishing relevant requested information".
REPRESENTATIVE HOLM remarked that "relevant" is a subjective
term.
MS. DAVIDSON indicated that she had concerns regarding the term
"relevant". Most of the debate the Division of Legislative
Audit gets into with agencies involves the question of whether
the information requested is really needed. Auditing standards
require that auditors be in control of the auditing process, and
that means that if auditors believe certain information is
needed, then they have to be free to ask for it. Therefore,
having an agency tell an auditor that the requested information
is not relevant is contrary to auditing standards. She noted
that the legislative auditor is required to be a CPA; thus
audits will be performed in accordance with standards. She
opined that adding the term "relevant" will create more
difficulties.
MR. BRANCHFLOWER remarked that the term "good faith" is also a
subjective term, and counseled against adding the term
"relevant".
Number 2127
REPRESENTATIVE GARA made a motion to adopt Amendment 2, on page
2, line 1, change "knowingly" to "intentionally". There being
no objection, Amendment 2 was adopted.
Number 2137
REPRESENTATIVE GARA made a motion to adopt Amendment 3, on page
2, line 3, change "full" to "good faith".
Number 2150
CHAIR McGUIRE objected. She said that although she understands
Representative Gara's concerns, she believes that in addition to
mirroring what is currently in AS 24.20.201, the term "full"
more adequately describes what is being sought.
REPRESENTATIVE GARA pointed out that although the term "full
cooperation" is used elsewhere, it is not yet a crime to not
engage in it. The language in SB 45 would make it a crime if
the cooperation is not as full and as prompt as the legislative
auditor wants. "Full" is full; "full" is 100 percent, not 95
percent; "full" is immediate; and "full" is sometimes an
unreasonable objective, he remarked. "Good faith" has a
historical definition; it is a term that is often used and is
well defined in the courts, and it is the courts that will be
imposing criminal sanctions for noncompliance.
CHAIR McGUIRE opined that changing the mental state from
"knowingly" to "intentionally" is sufficient to do what
Representative Gara is striving for, which is to ensure that
someone doesn't have the deck stacked against him/her.
MR. BRANCHFLOWER agreed that there is a connection between the
culpable mental state and the conduct. He said that as a
prosecutor, he would first have to be satisfied that there was
an intent, a conscious objective, to do any of the things
thereafter described, with the goal of obstructing the work of
the Legislative Budget and Audit Committee. Inherent in that
analysis, he remarked, would be a consideration of the
defendant's good faith and so there is a place for a good faith
analysis. He also said to keep in mind that if there is a
crime, it will be prosecuted by an experienced prosecutor from
the Department of Law's Criminal Division, and he/she will be
able to identify and distinguish between good faith efforts and
bad faith efforts.
Number 2289
MR. BRANCHFLOWER added, "Ultimately, in terms of the jury, that
will be a defense; it may not be a legal defense, but it will be
a de facto defense in terms of allowing the defense attorney to
argue that there was substantial compliance and good faith
conduct on the part of the [defendant]". He said that he did
not see the term "full cooperation" as being problematic,
adding, "We have to defer to the exercise of good judgment on
the part of the people who we put in these positions, whether
they be someone in Pat Davidson's office or someone in the
Criminal Division, to observe good faith conduct and exercise
discretion not to prosecute. He predicted that there won't be
many prosecutions resulting from this language; essentially, it
is a deterrent more than anything else.
CHAIR McGUIRE agreed.
REPRESENTATIVE SAMUELS said that he too objected to Amendment 3.
REPRESENTATIVE GARA said he is not satisfied that changing the
mental state to "intentionally" takes care of his concerns. He
elaborated:
If we adopt the bill ... without [Amendment 3], it's a
crime to intentionally withhold full cooperation. So,
you've been asked for 5,000 documents, you're on the
verge of going on a family vacation, you're trying to
leave town; to fully cooperate, you should stay in
town and produce those 5,000 documents. Now, it would
be good faith for you to say ..., "I'll get to it when
I get back," but it will be a crime for you to go on
vacation, under this statute the way we read it. If
we sat here for five hours we could come up with 500
more examples of where we're criminalizing reasonable
conduct. So, without the term "good faith", my
concern is not satisfied.
TAPE 03-40, SIDE B
Number 2388
CHAIR McGUIRE pointed out that there are multiple steps prior to
a situation ever reaching the point where the provisions of SB
45 would apply.
REPRESENTATIVE GRUENBERG indicated that he preferred the term
"full cooperation". He asked Mr. Branchflower whether he is
aware of any criminal statute that uses the standard of "good
faith".
MR. BRANCHFLOWER said he is not aware of any criminal statutes
that have "good faith" as an element of the offense. He offered
that perhaps this is because it is just not definable for that
purpose.
REPRESENTATIVE GRUENBERG surmised that because it is such a
subjective term, it would be a difficult to prosecute somebody
if "good faith" were used as a criminal standard.
Number 2256
A roll call vote was taken. Representative Anderson was not
present for the vote. Representative Gara voted in favor of
Amendment 3. Representatives Ogg, Holm, Samuels, Gruenberg, and
McGuire voted against it. Therefore, Amendment 3 failed by a
vote of 1-5.
Number 2241
REPRESENTATIVE GARA made a motion to adopt Amendment 4, on page
2, line 4, after "furnishing" insert "relevant".
Number 2239
CHAIR McGUIRE objected.
Number 2215
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 4. Representatives Holm, Samuels,
Ogg, and McGuire voted against it. Therefore, Amendment 4
failed by a vote of 2-4.
Number 2205
REPRESENTATIVE SAMUELS moved to report the proposed HCS for SB
45, Version 23-LS0205\U, Luckhaupt, 4/8/03, as amended, out of
committee with individual recommendations and the accompanying
zero fiscal notes. There being no objection, HCS CSSB 45(JUD)
was reported from the House Judiciary Standing Committee.
REPRESENTATIVE OGG complimented Senator Green on her efforts.
HB 102 - CONCEALED DEADLY WEAPONS LEGAL
Number 2179
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 102, "An Act relating to concealed deadly
weapons."
Number 2164
REPRESENTATIVE ERIC CROFT, Alaska State Legislature, sponsor,
explained that HB 102 would change the concealed carry law to
adopt the Vermont style of concealed carry law, which generally
repeals the criminal prohibitions. He pointed out that the
committee packet should include a document entitled, "How HB 102
Will Affect Alaska's Concealed Carry Laws," which compares the
differences between current Alaska law and Alaska law as amended
under proposed HB 102.
REPRESENTATIVE CROFT informed the committee that as he and
Representative Stoltze wrestled with the issues surrounding
reciprocity, the more frustrating and unnecessary Alaska's
permitting law seemed. Under the current law, a fisherman who
carries a large knife under his/her coat when in town would be
carrying a concealed deadly weapon, which is illegal. However,
the law includes an exception when one is engaged in
recreational activities and thus it would be acceptable for a
fisherman to carry a concealed knife on his/her boat. Under
current law, permit holders of a concealed deadly weapon have
the obligation, when stopped by an officer, to inform the
officer that he/she is carrying a concealed weapon. If the
office so desires, the permit holder has the obligation to allow
that officer to secure the weapon during the conversation.
However, the obligation to inform and hand over the concealed
weapon is placed only on permit holders. Therefore, if one is
out hunting and stopped by an officer, that individual
technically has no obligation to inform the officer of [the
concealed weapon]. There is a similar exemption if one is on
his/her own property.
REPRESENTATIVE CROFT directed attention to page 2 of the
document entitled, "How HB 102 Will Affect Alaska's Concealed
Carry Laws" in which the following question is posed: "Can I
legally carry a sheath knife under my coat?" Under current law,
one wouldn't be able to carry a sheath knife under his/her coat,
whereas under HB 102, one would be able to carry a sheath knife
in such a manner. Moreover, under the current law, those
carrying a sheath knife wouldn't be legally obligated to inform
police officers, but under HB 102, they would be required to
inform police officers that they are carrying a concealed
weapon. This situation, he said, led him to want to place the
constitutional right to carry [a concealed weapon] in a more
rational system.
REPRESENTATIVE CROFT emphasized that great care has been taken
in an attempt to not change the underlying gun law at all.
Therefore, HB 102 doesn't make it legal to carry a gun anywhere
in which doing so is currently prohibited. The legislation
simply erases the distinction between having a permit and not
having a permit.
CHAIR McGUIRE offered that if something is legalized, it can
then be regulated. She surmised that those committing heinous
crimes with guns are doing so with guns that aren't registered.
Therefore, any restriction placed on individuals who have
decided to register could be categorized as onerous.
Number 1850
BRIAN JUDY, Alaska State Liaison, Institute for Legislative
Action, National Rifle Association of America (NRA), began by
noting support for HB 102. He said that law-abiding citizens
shouldn't have to obtain permission to provide a means of self-
protection. Article I, Section 19, of the Alaska State
Constitution provides for the individual's right to keep and
bear arms. However, Alaska's current concealed weapon permit
law essentially places a price on Alaskans' right to keep and
bear arms and their natural right to provide a means of self-
protection.
MR. JUDY noted that currently, Alaskans don't need to obtain
permission to carry arms either loaded or unloaded openly, or
concealed when engaged in lawful outdoor activities. If an
Alaskan covers the firearm or isn't dressed in a manner that is
compatible with open carry or the individual is engaged in any
other activity other than a lawful outdoor activity, then one
must obtain a concealed weapon permit. He said that it really
makes no sense to have to pay a fee, deal with the bureaucracy,
be fingerprinted, get the permission of the government, and be
included on a list of law-abiding gun owners simply to dress in
a certain manner or to carry in a manner different than when
carrying openly.
MR. JUDY returned to the notion that [HB 102 proposes] a Vermont
style of carrying. Currently, Vermont is the only state that
doesn't require a permit to carry a concealed weapon. Vermont's
crime rate is extraordinarily low and ranks either 48th or 49th
in all categories of violent crime. The same situation exists
in Montana where one only needs a permit to carry if carrying
within city limits. Therefore, in 99.8 percent of the state one
doesn't need a permit to carry a concealed weapon. Again,
Montana is much like Vermont with regard to the lack of
incidents of misadventure in the areas outside the city limits.
Therefore, he opined, the states with this type of law are
working. Also, as pointed out earlier, law-abiding citizens in
Alaska are the only ones obtaining permits. Allowing these
folks to carry without a permit isn't going to change the fact
that these individuals are law-abiding. Criminals currently
carry concealed firearms without permits and will continue to do
so.
Number 1729
MR. JUDY predicted that the opposition to HB 102 would fall into
two general categories. First, there would be individuals who
are concerned that allowing people to carry without obtaining a
permit will generate problems. This argument was voiced back in
1994 when the original concealed permit law was considered. He
asserted that an analysis of Alaskan crime statistics
illustrates that violent crime was increasing in the early '90s,
but the year after Alaska's concealed weapon permit was adopted,
violent crime decreased and has continued to do so since.
Therefore, he opined, this proposed legislation would continue
the trend of decreasing violent crime.
MR. JUDY said that the other general concern is with regard to
training. Under existing law an applicant has to go through a
mandatory training course. He reiterated that it makes no sense
to restrict this one method of carrying a weapon because any
law-abiding citizen can carry openly, loaded or unloaded,
anywhere in the state without going through training. He
pointed out that of the 43 states that issue permits to law-
abiding citizens, there are a wide range of requirements in the
area of training. For example, Washington has no training
requirement. He asserted that the empirical evidence from all
of the states that [issue permits] illustrates the same thing:
law-abiding citizens who are carrying firearms, regardless of
their level of training, aren't causing problems. He relayed,
however, that although the NRA supports training, the NRA
believes that it shouldn't be required. He concluded by asking
for the committee's support of HB 102.
CHAIR McGUIRE asked why [the NRA doesn't support] a training
requirement, which would result in having better trained gun
owners.
MR. JUDY, in response, simply reiterated that the NRA believes
that the training for firearm owners should be voluntary, and
that there is a broad array of training requirements among the
states. Concealed weapon permit holders are operating as safely
and responsibly in the states requiring no training as in those
states requiring extensive training, he posited, again asseting
that empirical evidence shows that law-abiding firearm owners
take responsible steps.
Number 1521
CHAIR McGUIRE said that she didn't disagree with all of Mr.
Judy's comments, although lawmakers do place requirements in
statute to ask people to act smarter than they might otherwise
act. Such is done in a lot of other areas. She remarked that
one might say that [training] laws are written for the minority
who aren't smart enough or aware enough to voluntarily obtain
training. She raised the issue of Vermont's crime rate.
MR. JUDY said that it varies. For total violent crime, Vermont
ranks 49th out of the 50 states. However, the District of
Columbia, which has the most restrictive gun laws in the
country, ranks number 1 in violent crime. Vermont ranks 48th in
murders, 47th in robbery, and 48th in aggravated assault.
Alaska falls in the middle to the low end. Mr. Judy highlighted
that Vermont, from which Alaska is modeling its legislation,
isn't experiencing any crime problem in relation to firearms or
otherwise. Therefore, he suggested, Alaska's experience would
be similar to that of Vermont if [HB 102 were implemented].
CHAIR McGUIRE offered her belief that Mr. Judy is saying that
concern [with regard to weapon permits] is merely a perception.
She pondered whether a law on the books actually has any impact
as far as behavior is concerned. She also pondered whether the
passage of HB 102 would send the message that everyone can carry
the weapon of their choice or, instead, will people take it to
mean that the same laws in existence now would continue with the
exception that obtaining a permit through the government
wouldn't be required.
CHAIR MCGUIRE relayed her belief that [requiring permits]
doesn't addresses folks who follow rules. She questioned what
impact this legislation would have on [those who aren't informed
or don't follow the rules]. And although crime statistics are
important, she said, she believes it's dangerous to make
assumptions that Alaskan citizens are like Vermont citizens and
that concealed carry permit requirements have anything to do
with a state's rate of crime. She informed the committee that
she has long been a proponent of concealed carry [laws] and she
supports Representative Stoltze's legislation; however, HB 102
is a major difference.
Number 1207
MR. JUDY commented that laws are passed and those who tend to
comply with laws are the law-abiding citizens. He echoed his
earlier statement that law-abiding citizens follow the law and
obtain permits, while criminals ignore the law and carry
[concealed weapons] without permits. Mr. Judy said that he
didn't believe that with [passage of HB 102], more people would
carry [concealed weapons]. Based on an individual's
circumstances, people determine whether it's necessary for them
to carry firearms. With passage of HB 102, he predicted that
the only change will be that those who wish to carry won't have
to pay a large fee and go through the bureaucracy to exercise
that right. Furthermore, he predicted, the "bad guys" are still
going to be carrying. Moreover, HB 102 doesn't change the
underlying law in that one must still be 21 to carry a concealed
weapon and one can't carry in areas where it's currently illegal
to do so. Therefore, HB 102 simply removes the [bureaucratic]
burden from those law-abiding citizens, he opined.
CHAIR McGUIRE inquired as to why the concept in HB 102 isn't
applied to driver's licenses as well. She inquired as to why
the government tests drivers and issues a card that has now
evolved into more of an identification card.
MR. JUDY answered that keeping and bearing arms is a right, and
defending one's self is a natural right, whereas driving a car
is a privilege. Furthermore, every time one gets inside a car
and turns the key, that individual is operating the vehicle.
However, probably 99.9 percent of the time when one exercises
his/her fundamental right to keep and bear arms and one's
natural right to defend himself or herself, that firearm won't
have to be used even though it's being worn. Mr. Judy said that
the mere fact that criminals know law-abiding citizens have
firearms and have the ability to defend themselves would deter
crime. There is a major difference between driving and using a
firearm for self-defense, he opined.
CHAIR McGUIRE turned to the area of vocational rights and
background checks. She said that she continues to come up
against the notion that those who have committed a felony and
aren't 21 years of age should know that they can't carry a
weapon. However, she pointed out, there are a number of felons
who should know that they shouldn't be operating a state-
licensed childcare facility, for example, but they still come in
and swear that they aren't a felon when in fact they are. More
specifically, those who commit a felony in the areas of child
abuse or molestation certainly can't be a childcare provider, so
why do these individuals apply [to be childcare providers], she
asked. The same situation applies for concealed weapons as
well, she opined
Number 0873
MR. JUDY offered his belief that right know, there are about
17,000-18,000 permit holders and the number of denials is
remarkably low, with only about 17 permits denied each year. He
said that he didn't believe that there is a tremendous number of
convicted felons who are trying to obtain permits. He pointed
out that under state law, a convicted felon is prohibited from
owning and possessing a firearm. Therefore, a convicted felon
can't even take the first step to carry a firearm, either openly
or concealed. Mr. Judy said that he didn't see the [childcare
worker] analogy as pertinent nor did he believe there would be a
problem should HB 102 become law.
CHAIR McGUIRE explained that her line of questioning was meant
to point out that there is a role for the government, although
determining that role is often very difficult. She stated:
We could just set up a stack of statutes and say,
"Here's the rules folks," ... and everybody just ought
to know it. "Let's not even put in artificial permits
and licenses and background things ..., you should
just know it." And yet we don't do that. We don't do
it for a reason.
CHAIR McGUIRE relayed her belief that there is a precedent, in
certain areas, for requiring the government to come in and send
a message. She emphasized her belief that it's a constitutional
right [to carry and bear arms], but noted that she also believes
there is a place for governmental guidelines regarding this
issue.
Number 0634
REPRESENTATIVE GARA said he, too, was on the fence with this
legislation. He remarked that the statistics would be more
persuasive to him if they showed him that after the changes in
the laws in Washington, D.C., and Vermont, that those changes
caused the state to either become a more a dangerous place or a
safer place. He surmised that Washington, D.C., was a dangerous
place before and thus it developed a very restrictive gun
ownership role. He also surmised that Vermont has historically
been a very safe place and thus it developed a very
unrestrictive gun role. Representative Gara opined that the
aforementioned probably explains the statistics, rather than the
laws themselves making the areas safer or more dangerous.
REPRESENTATIVE GARA turned to Chair McGuire's point and agreed
that if [currently law] merely regulated good NRA members, then
it wouldn't be necessary. The question is what to do about
those folks who aren't that bright and who just don't think
things through. He asked, "Are we going to start missing people
who would otherwise not think about taking a gun safety course
or [who would] not be responsible enough to take a gun safety
course?"
MR. JUDY reiterated his earlier opinion that there is no
difference between states with no training requirement [and
those with a training requirement]. For example, Washington has
approximately 250,000 licensed permit holders who haven't been
required to take a safety course, and there is no problem with
permit holders in Washington. With regard to whether the laws
of Vermont and Washington, D.C., have an impact on the crime
rates, Mr. Judy said he thought Representative Gara raises a
good point. He acknowledged that there are probably a lot of
demographic differences between Vermont and Washington, D.C.,
which probably impact the crime rate.
MR. JUDY reiterated his assertion that in the early '90s,
Alaska's violent crime rate was on a steep increase and the year
after the concealed weapon permit law took affect, the [rate of
violent crimes] made a steep decrease. When law-abiding
citizens had a means of protection, crime dropped, he opined,
adding that he believes such will continue with the passage of
HB 102.
REPRESENTATIVE GARA directed attention to the document entitled,
"How HB 120 Will Affect Alaska's Concealed Carry Laws". He
referred to the question pertaining to whether an individual
could carry a sheath knife under his/her coat under current law
versus HB 102. He inquired as to the circumstances under which
a sheath knife could be carried under HB 102 but not under
existing law.
Number 0266
REPRESENTATIVE CROFT explained that AS 11.61.220 generally says
that people are prohibited from carrying a concealed deadly
weapon. The definition of a deadly weapon includes what one
would expect, but excludes an ordinary pocketknife or defense
weapon such as mace. Therefore, a knife that couldn't be
characterized as an ordinary pocketknife would be a deadly
weapon and couldn't be carried concealed anywhere. In further
response, Representative Croft explained that [under HB 102, a
sheath knife] would generally be allowed, and any place in which
it is currently illegal to have a deadly weapon at all, remains
so. Representative Croft specified that [HB 102] isn't changing
the entire gun or deadly weapon law, rather the distinction for
carrying concealed is being eliminated.
REPRESENTATIVE CROFT turned to the driver's license analogy and
said that [the legislature] has chosen two different paths on
guns versus driving. With regard to driving, it's being done
all the time and thus a certain proficiency is required. With
gun ownership, there are a lot of disqualifications and that
isn't changed by HB 102. Therefore, by federal law, one can't
possess a firearm, concealed or openly, if that individual has
been convicted of a [felony] crime, is a fugitive from justice,
or is a user of a controlled substance. When one obtains a
driver's license, that individual isn't asked whether he/she is
a user of a controlled substance or has been dishonorably
discharged from the armed forces. Therefore, there is the
desire to know whether someone is allowed to carry a gun and
certain categories of people are prevented from doing so. "The
qualification for continuing to exercise your right is the way
we view it," he said.
TAPE 03-41, SIDE A
Number 0001
CHAIR McGUIRE interjected to say that she was sure that
Representative Croft didn't mean to say that the one or two
minutes one is firing a gun is any less important than the time
spent driving a car everyday. In those few minutes in which an
individual is in a situation of defending oneself or using a
firearm it's imperative and just as important to know what one
is doing.
REPRESENTATIVE CROFT noted that he has a concealed carry permit
and the level of accuracy required isn't very high. Of Alaska's
18,000 [concealed carry permits], only about 17 are revoked. He
said that it's not so much shooting like in the movies as it is
the judgment about when to shoot. Again, it returns to the
fundamental distinction of trusting people with the right [to
carry a concealed weapon] and continuing to disqualify those who
have proven that they can't "handle it" through the prohibitions
on possession.
REPRESENTATIVE CROFT stated that he wasn't making a causative
argument between concealed carry laws, HB 102, and crime rates.
However, if Vermont can [do this], Alaska can as well,
particularly when one views Alaska's geographic situation of
Canada on one side and water on the other. In such a geographic
situation, Representative Croft predicted that there will be a
lot less difficulty in Alaska with people driving through the
state. Representative Croft said this is a matter of whether
one believes there should continue to be a dramatic distinction
between openly carried weapons or concealed weapons. If one
thought that Alaskans should have a permit before carrying at
all, then [HB 102] would be a major change in [his] view.
Number 0316
REPRESENTATIVE SAMUELS moved to adopt CSHB 102, 23-LS0515\I,
Luckhaupt, 4/2/03, as the work draft. There being no objection,
Version I was before the committee.
CHAIR McGUIRE, in response to Representative Gruenberg,
confirmed that Version I was the version that passed out of the
House State Affairs Standing Committee. [The House State
Affairs Standing Committee inadvertently reported out Version D,
however, although the committee intended to report out Version
I. Subsequently, the House State Affairs Standing Committee
reported out a corrected CS, Version I, on 4/22/03.]
REPRESENTATIVE HOLM directed attention to page 1, proposed AS
11.61.220(a)(1)(B). This provision requires that a person has
to request permission of the resident to bring a concealed
weapon into the residence. Therefore, Representative Holm
surmised, residency supercedes the right to protect one's self.
If one has the right to protect himself/herself, then why, he
asked, would one have to request permission of anyone who
happens to be a resident of an apartment. Representative Holm
posed a situation in which a father wants to access the property
because his children live there with his ex-wife. In such a
situation, Representative Holm inquired as to when an individual
loses his right to protect himself, under the guise of having to
request permission to express his right.
REPRESENTATIVE CROFT answered that subparagraph (B) on page 1
was included because it's a current restriction on permit
holders. Therefore, this legislation doesn't change any of the
substantive requirements on what people with concealed carry
[permits] have to do or not do. Whether or not to keep this
language is up to the committee, he said.
REPRESENTATIVE HOLM suggested that current law refers to the
owner of the property, while [Version I] refers to a resident of
the property. Representative Holm relayed that it has been
proposed to him that a right is something that no one can take
away while a privilege is something that someone gives.
Therefore, the right to protect oneself is different than the
right to pack a gun. "So, if you have a right to protect
yourself, that's different than a right to pack a gun, and so
they aren't exactly rights; you have a right to protect
yourself, but you don't have a right to have a gun on yourself
in certain circumstances," he stressed.
CHAIR McGUIRE asked why the change from owner to resident was
made.
REPRESENTATIVE CROFT said that it wasn't an intentional
distinction. He noted that he wanted to mirror the current law
as much as possible.
Number 0690
The committee took an at-ease from 10:05 a.m. to 10:07 a.m.
CHAIR McGUIRE relayed that during the brief at-ease
Representative Croft confirmed that the language mirrors what is
currently in law.
REPRESENTATIVE HOLM pondered when the right is changed from the
person's right [to carry a concealed weapon], to the resident's
right of self-protection. He inquired as to how this provision
is enforced.
REPRESENTATIVE CROFT explained that permit holders look for
buildings that are posted, but also know, as a general
requirement, that in places where people live, permit holders
have an additional obligation to inform the resident that they
are carrying [a concealed weapon]. Representative Croft relayed
that the idea is that [a permit holder should inform] the person
who lives in the residence, not the person with technical title
of ownership. This was a tremendous issue for the domestic
violence community and some Senators during the original
concealed carry legislation.
CHAIR McGUIRE, after noting that HB 102 would be held over to
Wednesday, April 23, 2003, explained that she is trying to say
that if the notion that [the right to bear arms] is a
constitutional right and those who commit crimes aren't law-
abiding citizens, then why place this false construct between
concealed carry and open carry and why include exceptions.
REPRESENTATIVE CROFT pointed out that current restrictions
pertain to possession, and therefore [HB 102] only eliminates
the distinction between concealed carry and open carry.
However, there has been the restriction that one can't carry
concealed or open in certain areas, such as a federal building.
Representative Croft said that he believes eliminating the
distinction is important, although specifying which people
shouldn't have guns and which places individuals shouldn't be
able to carry guns, concealed or not, continues to make sense.
Number 0977
REPRESENTATIVE SAMUELS interjected to say that the true test is
with regard to when to use the weapon.
[HB 102 was held over.]
ADJOURNMENT
Number 1026
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 10:13 a.m.
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