Legislature(1997 - 1998)
05/05/1997 01:32 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE May 5, 1997 1:32 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Brian Porter Representative Norman Rokeberg Representative Jeannette James Representative Eric Croft Representative Ethan Berkowitz MEMBERS ABSENT All members present COMMITTEE CALENDAR * HOUSE JOINT RESOLUTION NO. 36 Proposing amendments to the Constitution of the State of Alaska relating to redistricting of the legislature, and repealing as obsolete language in the article setting out the apportionment schedule used to elect the members of the first state legislature. - HEARD AND HELD SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 189 "An Act relating to sale of tobacco and tobacco products; and providing for an effective date." - MOVED CSSSHB 189(JUD) OUT OF COMMITTEE SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 159 "An Act relating to sale, gift, exchange, possession, and purchase of tobacco and tobacco products; and providing for an effective date." - MOVED CSSSHB 159(JUD) OUT OF COMMITTEE HOUSE BILL NO. 79 "An Act relating to the offense of possession of tobacco by a person under 19 years of age." - HEARD SUBCOMMITTEE REPORT AND HELD * HOUSE BILL NO. 252 "An Act relating to criminal records; relating to notice about and registration of sex offenders and child kidnappers; and amending Rules 11(c) and 32(c), Alaska Rules of Criminal Procedure." - SCHEDULED BUT NOT HEARD HOUSE BILL NO. 245 "An Act relating to minimum sentences for assault in the fourth degree that is a crime involving domestic violence; providing that a prisoner may not contact the victim of the offense when provided access to a telephone or otherwise immediately after an arrest; and amending Rule 5(b), Alaska Rules of Criminal Procedure." - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: HJR 36 SHORT TITLE: REAPPORTIONMENT BOARD & REDISTRICTING SPONSOR(S): REPRESENTATIVE(S) GREEN, Martin, Mulder JRN-DATE JRN-PG ACTION 04/23/97 1293 (H) READ THE FIRST TIME - REFERRAL(S) 04/23/97 1293 (H) JUDICIARY, FINANCE 05/05/97 (H) JUD AT 1:30 PM CAPITOL 120 BILL: HB 189 SHORT TITLE: RESTRICT TOBACCO SALES SPONSOR(S): REPRESENTATIVE(S) COWDERY, Austerman JRN-DATE JRN-PG ACTION 03/12/97 640 (H) READ THE FIRST TIME - REFERRAL(S) 03/12/97 640 (H) LABOR & COMMERCE, JUDICIARY 04/03/97 922 (H) SPONSOR SUBSTITUTE INTRODUCED - REFERRALS 04/03/97 922 (H) L&C, JUDICIARY 04/09/97 (H) L&C AT 3:15 PM CAPITOL 17 04/09/97 (H) MINUTE(L&C) 04/10/97 (H) L&C AT 3:15 PM CAPITOL 17 04/10/97 (H) MINUTE(L&C) 04/18/97 (H) L&C AT 3:15 PM CAPITOL 17 04/18/97 (H) MINUTE(L&C) 04/21/97 1211 (H) L&C RPT CS(L&C) NT 4DP 1NR 04/21/97 1211 (H) DP: COWDERY, RYAN, HUDSON, ROKEBERG 04/21/97 1211 (H) NR: BRICE 04/21/97 1211 (H) 2 ZERO FISCAL NOTES (DPS, REV) 04/21/97 1225 (H) COSPONSOR(S): AUSTERMAN 04/28/97 (H) JUD AT 1:45 PM CAPITOL 120 04/28/97 (H) MINUTE(JUD) 04/28/97 (H) MINUTE(JUD) 05/05/97 (H) JUD AT 1:30 PM CAPITOL 120 BILL: HB 159 SHORT TITLE: TOBACCO PURCHASE, POSSESSION, SALE, ETC. SPONSOR(S): REPRESENTATIVE(S) KOTT, Mulder, Kohring, Sanders, Ryan, Cowdery JRN-DATE JRN-PG ACTION 02/25/97 465 (H) READ THE FIRST TIME - REFERRAL(S) 02/25/97 465 (H) LABOR & COMMERCE, JUDICIARY 02/27/97 519 (H) COSPONSOR(S): SANDERS 03/27/97 871 (H) SPONSOR SUBSTITUTE INTRODUCED - REFERRALS 03/27/97 872 (H) L&C, JUDICIARY 04/09/97 (H) L&C AT 3:15 PM CAPITOL 17 04/09/97 (H) MINUTE(L&C) 04/10/97 (H) L&C AT 3:15 PM CAPITOL 17 04/10/97 (H) MINUTE(L&C) 04/11/97 1085 (H) COSPONSOR(S): COWDERY 04/17/97 1132 (H) L&C RPT CS(L&C) 4DP 1NR 1AM 04/17/97 1133 (H) DP: COWDERY, SANDERS, RYAN, HUDSON 04/17/97 1133 (H) NR: BRICE 04/17/97 1133 (H) AM: ROKEBERG 04/17/97 1133 (H) 2 FISCAL NOTES (COURT, DCED) 04/17/97 1133 (H) 4 ZERO FISCAL NOTES (DPS, REV, LAW, ADM) 04/28/97 (H) JUD AT 1:45 PM CAPITOL 120 04/28/97 (H) MINUTE(JUD) 04/28/97 (H) MINUTE(JUD) 04/28/97 (H) MINUTE(JUD) 05/05/97 (H) JUD AT 1:30 PM CAPITOL 120 WITNESS REGISTER JACK CHENOWETH, Attorney Legislative Legal and Research Services Legislative Affairs Agency 130 Seward Street, Suite 409 Juneau, Alaska 99801-2105 Telephone: (907) 465-2450 POSITION STATEMENT: Testified regarding HJR 36. JAMES BALDWIN, Assistant Attorney General Governmental Affairs Section Civil Division (Juneau) Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3600 POSITION STATEMENT: Provided department's position and answered questions regarding HJR 36. CASEY SULLIVAN, Legislative Administrative Assistant to Representative John Cowdery Alaska State Legislature Capitol Building, Room 416 Juneau, Alaska 99801 Telephone: (907) 465-3879 POSITION STATEMENT: Presented sponsor's position on SSHB 189. NICOLE POIRRIER, Legislative Intern for Representative Pete Kott Alaska State Legislature Capitol Building, Room 204 Juneau, Alaska 99801 Telephone: (907) 465-3765 POSITION STATEMENT: Read sponsor statement for SSHB 159. REPRESENTATIVE PETE KOTT Alaska State Legislature Capitol Building, Room 204 Juneau, Alaska 99801 Telephone: (907) 465-3764 POSITION STATEMENT: Sponsor of SSHB 159. ANNE CARPENETI, Assistant Attorney General Legal Services Section Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Answered questions during hearing of SSHB 159 on that bill and CSSSHB 189(JUD). ACTION NARRATIVE TAPE 97-76, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 1:32 p.m. Members present at the call to order were Representatives Green, Bunde, Porter and James. Representatives Croft, Berkowitz and Rokeberg arrived at 1:35 p.m., 1:37 p.m. and 1:42 p.m., respectively. CHAIRMAN GREEN advised members that the committee would not hear HB 79 or HB 252. HJR 36 - REAPPORTIONMENT BOARD & REDISTRICTING Number 0076 CHAIRMAN GREEN announced the first item of business was House Joint Resolution No. 36, proposing amendments to the Constitution of the State of Alaska relating to redistricting of the legislature, and repealing as obsolete language in the article setting out the apportionment schedule used to elect the members of the first state legislature. JACK CHENOWETH, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, explained that since not long after statehood, it has been clear that provisions covering legislative apportionment are out of sync with constitutional requirements first laid down by the United States Supreme Court in the early 1960s. This resolution would conform Alaska's constitutional scheme to those requirements. It would also require that in future legislative districting schemes, only single-member districts would be used. MR. CHENOWETH noted that HJR 36 deals principally with Article VI, the legislative apportionment article of the constitution. Section 1 of Article VI talks about election districts, the "term-of-art" used to describe the districts in which House members run for election or re-election. Section 1 of HJR 36 deletes obsolete language that refers to the first reapportionment and the reference to Article XIV, Section 1, substituting a requirement that the boundaries of election districts be drawn in conformity with other provisions of this article after each decennial census of the United States. A parallel change is made in Section 2 for Senate districts. MR. CHENOWETH referred to Section 3 and said he is recommending substitution of the term "redistricting" throughout this article. "Reapportionment" is a term generally reserved to amending or changing the number of representatives within fixed political boundaries. For example, every ten years when the census comes out, the United States Congress is reapportioned, with states gaining or losing seats based on population changes. The shift of seats from one jurisdiction to another having fixed boundaries, such as state boundaries, is a true reapportionment; the number of seats is reallocated among these jurisdictions. MR. CHENOWETH explained that within jurisdictions, however, the process of drawing lines is a simple redistricting, which is what is going on with state legislatures. The United States Supreme Court has made it clear that only resident population count can serve as the basis for the line-drawing and that any effort to tie this to some sort of fixed, permanent or semi-permanent lines will not sit well with the courts. This is a simple redistricting of Alaska into 20 Senate seats and 40 House seats. Section 3 of HJR 36 simply substitutes the term "redistricting" for "reapportionment", and that change is made throughout the rest of the resolution. MR. CHENOWETH referred to page 2, line 7, and said it also substitutes the word "resident" so that "resident population" rather than "civilian population" is the basis for redistricting. The limitation of tying this to a civilian population was set aside by an early state supreme court case. "And we have to go with some sort of resident-based population scheme," he concluded. Number 0365 MR. CHENOWETH said Section 4 deletes current language that talks about how reapportionment shall be developed and substitutes the requirement of single-member districts. "The Governor is to establish single-member election districts and is to establish Senate districts composed of two contiguous election districts, with each Senate district to elect one Senator," he explained. "That's the scheme that we now have in place." MR. CHENOWETH explained that Section 5 reworks Article VI, Section 6. It deletes some language that ties back to reapportionment and keeps in place the only language that seems to be pertinent to how lines are to be drawn, the language that the reapportionment boards in the past, and the courts in their review of the work of the Governor, have looked back at and used to consider these reapportionment decisions. MR. CHENOWETH noted that Section 6 changes the board's name to the "Redistricting Board". It maintains the requirement of a geographic spread but unties this from the notion of fixed Southeastern, Southcentral, Central and Northwestern Senate districts, which are the fixed districts used in the original constitution; it substitutes the four judicial districts established by law and authorized under Article IV, Section 1. MR. CHENOWETH said Section 7 simply is a change in name from "Reapportionment" to "Redistricting". Section 8 updates some references to the Governor, removing a gender-based pronoun and substituting a neutral term. It also makes further substitutions of "redistricting" for "reapportionment". MR. CHENOWETH said Section 9 deletes two sections of Article VI made obsolete by United States Supreme Court decisions: Section 5, which talks about combining House districts in order to maintain Senate districts in the old fixed-boundary scheme, and Section 7 (misstated as Article VII), which talks about modification of Senate districts when necessary to accommodate population shifts. MR. CHENOWETH stated, "We also propose to repeal Article XIV, which is a provision that sets out the initial reapportionment dating from 1959. It's not used anymore. It has no standing anymore. Article XIV is simply a device or a vehicle by which we generally restate the current apportionment, so that it can be found in the statute books. It's typically an annotation of some sort that describes the boundaries of the current apportionment, so at least we have it someplace out in the public and they can find it. Every time there's an apportionment change, every ten years, that change is made. But ... the original language of Article XIV is of no value anymore." He concluded by saying Section 10 is a boiler plate to get this before the voters in November 1998. Number 0570 REPRESENTATIVE ERIC CROFT asked whether the major change is "constitutionalizing" single-member districts. MR. CHENOWETH said yes, for both the House and the Senate. REPRESENTATIVE CROFT asked, "Do you mean any change in current law when you make the switch from `civilian' to `resident,' that is, the law that we're forced into by the federal interpretation?" MR. CHENOWETH replied, "Yes, we are following the requirements that have been imposed by, chiefly, recently, state supreme court decisions that have eliminated the use of `civilian' and required that we go to a resident population base. And the state supreme court has suggested ways in which it is possible to take, for example, the military count, and try to allocate some number of estimated military that reflect a better split between resident and nonresident." REPRESENTATIVE CROFT asked whether it conforms to current practice in that regard. MR. CHENOWETH affirmed that. REPRESENTATIVE CROFT referred to the term "contiguous" and said he'd read some of those cases. Because of geography, Alaska has an interpretation somewhat different from other states. For example, Alaska has one Senate district and two House districts separated by 700 miles of ocean; those are considered "contiguous." He stated, "So, we don't mean any change in that." MR. CHENOWETH concurred. REPRESENTATIVE CROFT asked, then, whether the sole substantive change is locking in single-member districts. If this were current law and these changes had been made two years ago, would what they are doing now be legal? MR. CHENOWETH said yes. Number 0714 REPRESENTATIVE ETHAN BERKOWITZ asked for confirmation that there is no constitutional problem with the existing structure, from a federal perspective. MR. CHENOWETH replied that what problems there might be, the state courts have generally worked their way around. They have looked at decisions of the United States Supreme Court and accommodated as best as they've been able to, pointing out that this is an article in need of revisitation and amendment, in light of decisions from the United States Supreme Court and their own practices. REPRESENTATIVE BERKOWITZ indicated the Hickel case is the only related case he has read, although there may be others. He asked, "What, generically, are the concerns in the courts?" MR. CHENOWETH answered, "Well, the courts have had to fill in, if you will. They have had to assume responsibility where there was no literal expression of responsibility for action taken by the Governor or by the reapportionment board as recommendations to the Governor. For example, there is no authority in law to adjust the terms of sitting Senators. The courts have filled in by saying that when there is a substantial change in a boundary, and a Senate district is increased substantially so that new faces are brought in or former constituents are let go of and put in a different district, ... there is an inherent authority to cut short by two years the Senate terms and require a Senator ... in a remade district to run again." MR. CHENOWETH indicated there is nothing of that in the state constitution, adding, "They have simply accepted the fact that that needs to be done, looked at the operation of that kind of a provision in other states and adapted it ... into this." He emphasized this is the one thing for which no express provision exists in the state constitution, nor is there an express provision for it in this resolution. Number 0845 REPRESENTATIVE CON BUNDE asked why they weren't including that omitted provision here. MR. CHENOWETH answered, "Well, I think you should. I think a complete package would be some sort of reference in here that the Governor has explicit authority to, under some kind of circumstances, cut short the terms of sitting Senators and require that they run for re-election. Now, I don't know how that's going to sit in the other body, and I certainly wasn't asked to make that change. I only throw it out on the table as the one piece of this puzzle that, as I went back and looked at this thing over the weekend, I thought perhaps we ought to put something in there so that the courts are not relying upon some assumed authority. Having rewritten Article VI, perhaps we ought to add that in and make that point clear." Number 0919 REPRESENTATIVE BUNDE noted the lateness in the session and the expense required for a public vote on a constitutional amendment. He suggested they'd be remiss not to include as many housekeeping details as possible. He'd like to see that provision included. REPRESENTATIVE BRIAN PORTER pointed out that the Governor can make the appointment to the districting board without confirmation by or concurrence of the legislature. He asked whether it would be a friendly amendment to add that. Number 1001 CHAIRMAN GREEN said that was a good thought. He mentioned the "two concepts" and asked Mr. Chenoweth whether there is a way to tighten this so that nothing is left to chance. They'd been working this way at least as long as he'd been in the state, that "every decennial election, the Senators just serve two terms, and then everybody starts from scratch again; but this would codify it." REPRESENTATIVE PORTER indicated his own suggestion about confirmation had been somewhat facetious. CHAIRMAN GREEN clarified that he was discussing the prior issue. Although it wasn't essential to do it immediately, he wondered whether there was a way to modify it, possibly for review at a future meeting. MR. CHENOWETH said he believed that could be accomplished. It may only be necessary to add a sentence or a fraction of one that invites the published final plan to indicate some determination on the terms of Senators then in office, or words to that effect. CHAIRMAN GREEN said he perceived that to be the will of the committee, according to comments. REPRESENTATIVE CROFT asked whether there would be other witnesses. CHAIRMAN GREEN replied that no one was on teleconference, but Mr. Baldwin was signed up to testify locally. Number 1114 JAMES BALDWIN, Assistant Attorney General, Governmental Affairs Section, Civil Division (Juneau), Department of Law, came forward to testify, saying Representative Croft's questions had pretty well covered what he wanted to clarify that day. The people in his area of the department generally end up advising the reapportionment board. He said, "I guess I've been through about three or four, but not that many governors. It seems like there's been more reapportionments than there have been governors because of the way these things get into litigation. And we seem to have to do them more than once per ten-year cycle." MR. BALDWIN indicated the application of the federal voting rights act has made their job increasingly complicated over time. He explained, "It seems like we do the plan, we get through our courts, and then we have to get through the Justice Department for pre-clearance, which then seems to make us have to go through another cycle again." Mr. Baldwin is concerned, with this legislation particularly, about abandoning some current flexibility in techniques to bring forward reapportionment plans. He stated, "If you go strictly to a single-member-district approach, then you give up the ability to go to multi-member districts, if that would serve our interests and perhaps assist us in gaining pre-clearance from the Justice Department." MR. BALDWIN said he couldn't pose a particular set of facts that would cause that to arise. "But I've been having a terrible time doing that for every reapportionment plan we've come up with; there's always been something new that comes up to cause us a hurdle before the Justice Department," he stated. "So, I just ask the committee to consider that fact. As our population grows and it shifts, and we know it's shifting somewhat, particularly towards the Mat-Su area of the state, it's going to take a larger population for rural areas of the state; they're going to have to come in and pick up, perhaps, what we call the `fringe areas' of the municipalities and more higher-populated areas." MR. BALDWIN said it might be possible they'd need to go to multi- member districts to solve some particular problem. Under the current interpretation of the state constitution, they can go to single-member districts if the Governor desires that. Mr. Baldwin advised members, "Not knowing who the next Governor is going to be that's going to be writing the next plan, you might want to keep in mind leaving that option open to him or her." MR. BALDWIN expressed concern that being required to go to single- member districts may affect rural areas more than urban areas. While he wasn't saying they'd want to do multi-member districts in rural areas, they may need to do so in urban districts in order to make things work in the rural areas. Or they could possibly be into retrogression, which he called a "nasty word in the area of voting rights." Mr. Baldwin explained, "In other words, the minorities who are represented now would lose representation. And ... mathematically, if that works out, if demographically that works out, we have to do that, that's fine. But ... if it can be done another way, the Justice Department is going to be there, and I don't know what the outcome would be, lacking the flexibility that we have now. So, ... I really hate this saying, but `if it ain't broke, don't fix it' might well apply here." MR. BALDWIN said he believed the testimony earlier was that the requirement of districting only resident population is not intended to be a change from anything now in effect. He stated, "Our supreme court was not quite so direct in the way it said that contiguity can include expanses of water. And I want to make sure that in here you're not saying `contiguous' in its plain meaning, which means right up against one another. We can't lose that flexibility, because geography just works against us in so many ways, and particularly getting things to work. So, I'm glad that you're creating a strong record for that." Number 1380 MR. BALDWIN noted that it was nearly the end of session. If this resolution did not pass both houses, he asked the committee to carefully consider studying this matter in the interim, particularly with regard to single-member districts. He mentioned "knowing better what's going into the building blocks of the census, which is being put together now, whether there isn't going to be enough evidence there to perhaps lead to a decision that we don't need to abandon this flexibility that we have now." MR. BALDWIN commented that from a Governor's perspective, single- member districts are good because a veto can be done "surgically," by district. However, from the realities of reapportionment or redistricting, it may cause real problems for the next Governor. Number 1432 CHAIRMAN GREEN indicated they had used this method since the 1992 election. He asked whether there wasn't a significant influx and shifting of population in the 1980s. He said it seems the concerns Mr. Baldwin expressed were handled well in single-member districts. He asked, "Do you anticipate some reason why that won't continue to be handled well with single-member districts?" MR. BALDWIN said the only thing he can successfully anticipate is that there will be litigation over the plan, one way or another. There have been a couple of supreme court cases recently on using minority voters as a criteria. While he can't foresee the affect of that, he predicts Alaska will be in a "fight over retrogression" in the next reapportionment. He explained, "When you go into these reapportionment efforts, the Justice Department generally sticks you with a benchmark as to ... how many minority-influence seats you have, how many majority seats you have. And if the way we go into it forces us into a retrogression situation, I see long and protracted litigation, with uncertain results at the end of the tunnel." REPRESENTATIVE PORTER asked, "With the feds?" MR. BALDWIN replied, "I think with the minorities, and the feds will be as a part of it, yes. They will be ... in the litigation as well." He said for a state like Alaska, which is closely monitored under the voting rights act, the best situation is not to have retrogression but to maintain the benchmarks, if at all possible. While it is hard to predict what will happen, he anticipates that is what Alaska will be confronted with. There might be ways to avoid it. MR. BALDWIN stated, "Keeping the maximum powers in the hands of the Governor to do that, (indisc.) in the board to do that, would be my preferred alternative. But it's not the best." He pointed out there is much good to be said for single-member districts. Campaigns are cheaper and easier. It is easier to maintain "one person, one vote." Constituents don't need to feel that they can't tell who their representative is, and there is a more direct relationship. Mr. Baldwin stated, "There's all those good things, but when you get right down to the problems that we have with a small population, a large area of geography and much water and all those factors brought to bear, tying your hands to one method of redistricting might not be what would serve the interests of ... the state as a whole." Number 1596 CHAIRMAN GREEN suggested that when one looked at the demographics of the districts as they were done, and the number of minorities and other factors, it looked pretty good across the state. "To then say that it might be better to go to multiple-member districts and potentially get back into the `doughnut' district or Valdez being tied in with South Anchorage, I mean, those kinds of things seem to be much more confusing and much more potential for litigation than to go to an area where the constituency is far more aware of who their representative really is," he said. REPRESENTATIVE JEANNETTE JAMES agreed with Mr. Baldwin's reasons why a single-member district is important. She indicated she'd prefer not to have an option, which they may use when they don't need to. She'd never yet seen a redistricting without litigation. She feels much more comfortable with a single-member district because of the "one man, one vote" issue and because the people know who represents them. She believes those are important issues. REPRESENTATIVE JAMES indicated she understands about losing members from rural areas. However, in the next ten years there may be a surge in the rural areas, particularly if they get some of the anticipated development. She asked whether "maybe it ought to be left that the option is only a single-member district and then, should we see a problem with that coming in the future, that we then go to the voters to ask for a change." She added, "Maybe that's not wise, because maybe most of the voters are in the areas who love to have more representation than less out there; I don't necessarily think that's true." She asked Mr. Baldwin to respond to that way of looking at it. Number 1708 MR. BALDWIN replied, "I don't think it's harder to come up with a list of ... why you'd want multi-member districts, first off. I think there's a list of reasons for that, too, and because of the other criteria in the constitution about compactness and socioeconomic interrelatedness, which are the other criteria in the constitution, it might well be able to state a case that an area, for example, Juneau, which ... has in past reapportionment plans, before the one we're in, has had multi-member districts, and probably for a good reason. It's hard to see any division line between the town and the [Mendenhall] Valley, for example, and there have been other areas in the state that are like that, that have benefitted from having multi-member districts." MR. BALDWIN said he didn't know what the process would be for the voters to come back and change it at some point in the future. He stated, "I mean, we have a reapportionment, and we try to do a plan and have it done so it can be in place for another ten years. And to interrupt that in the middle of a cycle, which is what we've done the last couple of times because of litigation, has been very disruptive to the electoral process. Can you imagine the Division of Elections scrambling to try and get their precinct lines and regulations done for an election when you don't know what the districts are going to be? It's really pandemonium." He said he wouldn't recommend an approach like that, if he understood the question correctly. Number 1777 REPRESENTATIVE JAMES mentioned a lawsuit "determined on a national level last year" about gerrymandering in the South. In her own district, she noted that they'd "zeroed out Nenana to meet some population, Native population, and left me with less people in my district than other districts," but within the parameters allowed. She asked whether that court decision would have precluded that from happening and whether Mr. Baldwin was familiar with it. MR. BALDWIN replied, "Yes, I am. I don't think so. Representative Croft and I've argued about this a little bit; he doesn't quite see it my way. But I think that in Alaska we did our redistricting considering not only race; we also considered the other traditional criteria, which are compactness and socioeconomic connectedness. At the same time, we did the adjustments which were required, we thought, to meet pre-clearance requirements. It's only when you're doing it based completely on race, without any other criteria, that you fall into the realm of those U.S. Supreme Court cases involving Texas and Georgia. So, if that was your ... sole criteria, you did it just because of race considerations, then you're going to have violated the U.S. Constitution." Number 1874 REPRESENTATIVE PORTER indicated that if it wasn't the sponsors' desire to get this past both bodies this year, he was only being facetious regarding confirmation of the board by the legislature to the extent that he believed this was a "slam-dunk" housekeeping legislation. However, if the main feature needs looked at further, this would be the appropriate committee to perhaps look at "a much bigger element of this whole area." REPRESENTATIVE PORTER explained, "I would think that it would be appropriate to try to get a procedure to put in place a board that would look at redistricting from a position of what is the most appropriate - under the law - district to put in place for the betterment of the voters of the state of Alaska, instead of, `How much partisan gerrymandering can we do and get away with it?' And I'm not saying that one party does this any better or worse than the other party. I mean, we've been here long enough to know that they both do it. So, if it is that we have a desire to work on this over the interim, I would be happy to try to work on that element also." CHAIRMAN GREEN indicated changing that would raise a concern. He asked whether Mr. Baldwin had indicated, in response to Representative Porter's mention of this earlier, that the Administration would be more concerned about the resolution if they modified the strong gubernatorial input in selection of the board. MR. BALDWIN suggested that may have been Mr. Chenoweth. He said it wasn't brought up while he was present. CHAIRMAN GREEN asked, "So, you don't see any problem with that?" MR. BALDWIN laughed, then said, "I think that the constitution is just fine, as far as having the Governor appoint the board. That was a decision that was hotly debated in the minutes of the constitution. ... They felt that the legislature, while a[n] exceedingly wise organization, maybe was not best suited for ... making reapportionment decisions." Number 2004 REPRESENTATIVE CROFT suggested if they knew anything after this history, it's that the legislature doesn't want to be involved in rewriting its own boundaries. While to some extent it's up to the vagaries of who is in office every decade and there have been some games, he can't imagine the games there would be if the legislature were in charge of that. Number 2024 REPRESENTATIVE PORTER responded that he certainly wasn't suggesting that. He was suggesting trying to establish a neutral board without gubernatorial or legislative direction on how to try to gerrymander the districts. He said, "And if there's anybody here that doesn't think that that isn't what's happened the last 10, 20, 30, 40 years, I'll talk to you after we get off the record." Number 2050 REPRESENTATIVE BUNDE brought up questions he'd like to have addressed if this was worked on during the interim. First, do other states have both single-member and multiple-member districts in the same body? And have other states gone from having single to multiple members? He understood that most have gone from multiple to single, for many good reasons, and while he understood the plea for flexibility, "we may need a socket set here but we've got a crescent wrench; maybe we don't need to keep the crescent wrench." MR. BALDWIN replied that he didn't know the answer but would be happy to research it. Number 2107 CHAIRMAN GREEN asked whether there were further comments. Speaking as both sponsor and chairman, he announced that HJR 36 would be held over and worked on during the interim. SSHB 189 - RESTRICT TOBACCO SALES SSHB 159 - TOBACCO PURCHASE, POSSESSION, SALE, ETC. HB 79 - MINOR IN POSSESSION OF TOBACCO Number 2150 CHAIRMAN GREEN called on Representative James for a subcommittee report on Sponsor Substitute for House Bill No. 189, "An Act relating to sale of tobacco and tobacco products; and providing for an effective date"; Sponsor Substitute for House Bill No. 159, "An Act relating to sale, gift, exchange, possession, and purchase of tobacco and tobacco products; and providing for an effective date"; and House Bill No. 79, "An Act relating to the offense of possession of tobacco by a person under 19 years of age." The three bills had been assigned to the same subcommittee. REPRESENTATIVE JAMES, speaking as chair of that subcommittee, reported that they had met that morning and decided to let the decisions be made by the committee as a whole. SSHB 189 - RESTRICT TOBACCO SALES CHAIRMAN GREEN brought before the committee Sponsor Substitute for House Bill No. 189, "An Act relating to sale of tobacco and tobacco products; and providing for an effective date." Version 0- LS0711\F, Ford, 4/21/97, had been adopted as a work draft at the previous hearing. CASEY SULLIVAN, Legislative Administrative Assistant to Representative John Cowdery, spoke on behalf of the sponsor, saying this bill will limit public access to tobacco products in retail premises; require employees to learn the relevant statutes and sign an affidavit attesting to their understanding; and increase penalties for selling tobacco to minors. MR. SULLIVAN said one thing that passionately resonates throughout Alaska is that people don't want to see tobacco going to minors. This bill changes the penalties for selling or giving tobacco to a person under 19 years of age from a violation that carries a fine of not less than $300 to a class A misdemeanor carrying a penalty of up to $5,000; a second offense would be a class C felony carrying a penalty of up to $50,000. It is not their intent to punish minors beyond the penalties now in statute, and they hadn't addressed that. It is essentially for retailers selling tobacco to minors. MR. SULLIVAN referred to testimony during the House Labor and Commerce Standing Committee hearing, which indicated banning tobacco self-service displays is a popular approach endorsed by a couple of different establishments. He said this bill is the first to feature that self-service ban. MR. SULLIVAN referred to questions from the previous hearing in the present committee. The first regarded lack of fiscal notes. He'd checked with Anne Carpeneti of the Department of Law, who said she won't be issuing a fiscal note "due to the lack of history." All others received thus far have been zero fiscal notes. MR. SULLIVAN referred to a second question concerning the culpable mental state of "negligence" now in AS 11.76.100. He said that is not the commensurate term to use with the stricter penalties proposed here. For a class A misdemeanor, "knowingly" is more appropriate; for the class C felony, "recklessly" is more appropriate. Mike Ford from Legislative Legal Services had indicated that including both definitions within the bill would be okay, and those are consistent with the amendment Representative Porter had offered at the last hearing. MR. SULLIVAN next referred to a question asked by Chairman Green, relating to whether the penalty provisions would affect people who are not retail shop owners, such as those on the streets giving a few cigarettes to others. Review with Legislative Legal Services had indicated the standard of culpability for these penalties would make that highly improbable, just due to the circumstances. He stated, "But in a memo that we got today, just due to the actual definition of the statute, ... they would be responsible for that." CHAIRMAN GREEN said, "If somehow caught, they would be." MR. SULLIVAN agreed. He restated that the intent is not to punish minors or people on the street. They just want to restrict tobacco to public access, as much as possible, in retail establishments and to provide economic incentive for not selling to minors. Number 2315 REPRESENTATIVE BUNDE noted the repeated comment about not wanting to punish minors. He also recalled that the sponsor had once indicated he didn't want to punish those already addicted to nicotine. Yet a minor who attempts to purchase alcohol is subject to a punishment as well as the person who sells the product. He asked the reason for differentiating between illegally purchasing tobacco and illegally purchasing alcohol. Number 2345 MR. SULLIVAN replied that they just don't address it in this bill. He believes there are already penalty provisions for minors in possession of tobacco, "a violation of $300." He stated, "We thought that the responsibility ought to be on the people who distribute these products. And it is. And then there's new federal regulations, as you well know, that are coming out. And we thought that would be ... the eminent focus of our legislation." REPRESENTATIVE BUNDE asked, "If a minor is using a false ID and purchases, do you feel that's still adequately addressed in existing legislation?" MR. SULLIVAN answered that to the best of his knowledge, it is not covered extensively. Number 2378 REPRESENTATIVE CROFT noted the class C felony for the second sale of tobacco. He asked what the penalties are for selling marijuana. MR. SULLIVAN said he didn't know. They had fashioned these penalty provisions to be similar to those in statute for providing alcohol to minors, although there is a stiffer fine. Number 2411 REPRESENTATIVE BERKOWITZ noted that this also covers exchanging or giving tobacco. He suggested a person giving a cigarette to a 16- year-old or 18-year-old would come under the reach of the statute. MR. SULLIVAN affirmed that. He mentioned Mike Ford of Legislative Legal Services and read: "Accidentally giving a cigarette only causes a crime to occur if the act is a gross deviation from what ... a reasonable person would do in that situation." He said it is a culpable mental state. Number 2463 REPRESENTATIVE JAMES asked how they envision enforcement happening. CHAIRMAN GREEN asked: With a zero fiscal note? TAPE 97-76, SIDE B Number 0006 MR. SULLIVAN indicated they hope the penalties will encourage enforcement and discourage retail owners and employees from breaking the law. He stated, "There's obviously an increase in education that is going on right now through federal regulations. Throughout all the shops in Alaska, we're seeing the `we card' program and others similar to that. I think that the education is very high, and once they're also educated on the penalties that will be incurred if they sell, if they deviate from this, I think that you will find, with these increased penalties, that the sales ... of tobacco to minors will decrease." CHAIRMAN GREEN asked: Without catching someone in the act of selling to a minor, what would the penalty be for an owner who didn't enforce it or who didn't cause employees to enforce it? MR. SULLIVAN said he didn't know. Number 0070 REPRESENTATIVE PORTER restated his concern about passing this bill out with a "violation standard for a misdemeanor and a felony." He said they'd have big trouble if they had a negligence standard for committing a felony, which he believes is totally inappropriate for a misdemeanor. He proposed changing that. CHAIRMAN GREEN asked whether the sponsor had concerns about that; Mr. Sullivan's reply was indiscernible due to simultaneous speech. Number 0102 REPRESENTATIVE NORMAN ROKEBERG said along that same line, he is concerned that the culpable person is the employee. The five-year window where it goes from a first-offense class A misdemeanor to a class C felony seemed a bit draconian. With too stiff a penalty, there is a tendency not to enforce it if it seems unreasonable. Number 0123 REPRESENTATIVE PORTER agreed. As discussed in other bills relating to whether an offense should be a violation, misdemeanor or felony, there is a practical side. A person will get whatever sentence the court feels is appropriate within legal guidelines. A clerk convicted of a C felony for a second offense of selling cigarettes to a minor will get no more than for a misdemeanor. He explained, "You can sentence someone on an A misdemeanor up to a year in jail. A C felony is not going to get any more than that. It might even get less because of a serious suspended imposition of sentence or something. With that in mind, we're moving from a violation, which is no jail time, into the criminal area." REPRESENTATIVE PORTER suggested making this a B misdemeanor and an A misdemeanor, as opposed to an A misdemeanor and a C felony, and changing the standard to "knowingly" and not "negligently," so that it is consistent with other criminal offenses. CHAIRMAN GREEN asked whether that was being offered as an amendment. REPRESENTATIVE PORTER moved that as an amendment, specifying that the initial offense of selling or giving tobacco to a minor would be a B misdemeanor, and the second offense would be an A misdemeanor. In addition, under AS 11.76.100(a)(1), the word "negligently" would be replaced by the word "knowingly". CHAIRMAN GREEN asked whether there were questions or an objection to the amendment. There being none, the amendment was adopted. REPRESENTATIVE ROKEBERG made a motion to move committee substitute 0-LS0711\F, Ford, 4/21/97, as amended, from the committee with attached zero fiscal notes and individual recommendations. There being no objection, CSSSHB 189(JUD) moved from the House Judiciary Standing Committee. SSHB 159 - TOBACCO PURCHASE, POSSESSION, SALE, ETC. [Contains extensive comparisons with CSSSHB 189(JUD)] CHAIRMAN GREEN announced the next item of business was Sponsor Substitute for House Bill No. 159, "An Act relating to sale, gift, exchange, possession, and purchase of tobacco and tobacco products; and providing for an effective date." Number 0282 NICOLE POIRRIER, Legislative Intern for Representative Pete Kott, read the sponsor statement into the record, noting that Representative Kott would join the meeting shortly. She read: "The state of Alaska has a serious problem with underage consumption of tobacco products. Statistics compiled by the Department of Health and Social Services indicate that 21 percent of Alaska's high school students regularly smoke and that 25 percent of our ... middle school students smoked at least one cigarette in the last month. As reported by the February 27, 1997, edition of The Wall Street Journal, the Center for Disease Control and Prevention has concluded that approximately one million children each year take up smoking and that unless they quit, over one-third of them will die from tobacco-related illnesses. "These statistics are cause for great concern. It is estimated that 18,000 of Alaska's children will succumb prematurely to tobacco-related illnesses. This is a tragedy, not only for the individuals but for our state as a whole. I think that we can do better. "Under existing law, no one under 19 years of age is permitted to possess tobacco. Obviously, large numbers of our children are being accorded illegal access to this product. House Bill 159 would have the salutary effect of limiting that access. This bill requires that merchants, prior to the sale of tobacco, demand proof of age from any prospective patron who appears to be under 27 years of age. House Bill 159 requires all clerks involved in the retail sale of tobacco to sign an acknowledgment that they have been advised of this proof-of-age requirement. In addition, House Bill 159 increases the penalties for underage sale or possession of tobacco. I urge your support." Ms. Poirrier deferred to the sponsor, who had not yet arrived, to answer questions. Number 0366 REPRESENTATIVE BERKOWITZ noted that they'd just passed out legislation that defined, by statute, that this is an A misdemeanor. Now, they were reverting and calling it a violation. He suggested that since this is a subsequent action, it may supersede their preceding action if it passed out of committee. REPRESENTATIVE ROKEBERG stated his understanding that there are two different "offendee potentials," as the bills speak to different parties. One is a giver, seller, barterer or distributor, whereas the other is the underage receiver or possessor. Number 0408 REPRESENTATIVE CROFT agreed. He said it makes it a violation for a person under 21 years of age to knowingly possess tobacco or to present false identification. He asked what the current penalty is, if any, for minors who purchase tobacco. REPRESENTATIVE BERKOWITZ responded that he was talking about just the provisions of AS 11.76.100. REPRESENTATIVE PORTER asked, "As stated in the bill or as existing in law now?" REPRESENTATIVE BERKOWITZ said as stated in both SSHB 159 and SSHB 189. Number 0450 REPRESENTATIVE BUNDE referred to page 4, lines 9 through 18, and said it talks about a person with a business license who violates this section. It isn't only talking about a minor. REPRESENTATIVE CROFT added, "And similarly, as you just said, on page 1, lines 13 and 14, and page 2, lines 1 and 2, a person who violates it is given a violation." He agreed there are two areas where the seller is getting a violation, whereas they'd just made it a misdemeanor. REPRESENTATIVE BERKOWITZ said he'd be happy to supersede with this. REPRESENTATIVE ROKEBERG asked whether it would be appropriate to do a conceptual amendment to conform the legislation. He said he'd hoped the subcommittee would have taken up those issues. CHAIRMAN GREEN agreed and said he hadn't realized there was the conflict. REPRESENTATIVE ROKEBERG said, "I sit corrected. Representative Berkowitz is correct in those areas that do have overlap with the other bill." REPRESENTATIVE CROFT advised members that he had a "side-by-side" of the different tobacco bills. CHAIRMAN GREEN asked whether that had been presented to the subcommittee. REPRESENTATIVE CROFT said no, they'd just made it in-house. REPRESENTATIVE BERKOWITZ indicated his staff member, currently out of town, had prepared it. Number 0541 CHAIRMAN GREEN explained to Representative Kott, "We're at the point of saying that we may be duplicative or in conflict with the bill we just passed out." REPRESENTATIVE PETE KOTT, sponsor of SSHB 159, replied that he couldn't comment on CSSSHB 189(JUD) because he wasn't present when it was heard. He said, "This bill makes it a violation, the ... first offense being $250, within a two-year period, and subsequent increasing fines." CHAIRMAN GREEN advised him that the previous bill was punishing only for selling tobacco to minors, with a couple of different classifications of misdemeanors. REPRESENTATIVE KOTT explained, "This does not take it to a misdemeanor level. It's just a violation and does cover not only those who sell it but those who provide it to the minor. It could be someone else of legal age, outside of a retailer or wholesaler." REPRESENTATIVE BUNDE said he didn't see one bill superseding the other or being duplicative until voted on, on the House floor. Two levels of violation were being offered. While he wouldn't expect both bills to become law, they provided the body a choice. Number 0612 REPRESENTATIVE ROKEBERG recalled, from the House Labor and Commerce Standing Committee hearing, that testimony indicated additional provisions in SSHB 159 relate to authorities' ability to revoke or suspend a business's endorsement for a violation. He believes this bill goes somewhat beyond the previous bill and has merit in those areas. Whereas he believed CSSSHB 189(JUD) focused on the sales clerk, this focuses on the business itself, because the business has a responsibility to the state and has the endorsement granted by the department to conduct that type of business. CHAIRMAN GREEN pointed out that this also covers a person. Number 0678 REPRESENTATIVE ROKEBERG said he appreciated that. On the one hand, it may be appropriate to ask legal counsel, via a conceptual amendment, to conform the two bills, if that is the sponsor's wish. Or, as Representative Bunde mentioned, the bills could be forwarded to stand on their own merits. Number 0697 REPRESENTATIVE PORTER said while Sections 1 and 2 are obviously not in conformance with CSSSHB 189(JUD), there is another element in here. Noting the existence of amendments to lower the age, he said he'd vote for those. He believes it would be inconsistent to have two military bases where smoking is legal for 19-year-olds and 20- year-olds and then to preclude them from coming into the city where other adults could smoke and they couldn't. REPRESENTATIVE PORTER stated, "So, to the extent that we have already amended ... the one section, and the major difference in the second section is the age anyway, because ... it is, by law, now a violation to possess or purchase, I would suggest we just delete Sections 1 and 2, and Section 3, if it is the will of the committee, to the current age and pass the bill." Number 0760 REPRESENTATIVE ROKEBERG suggested it would be easier to vote on his own amendment regarding the age first. He offered Amendment 1, 0- LS0287\P.1, Ford, 4/17/97, which read: Page 1, line 5: Delete "21" Insert "19" Page 1, line 6: Delete "21" Insert "19" Page 1, line 7: Delete "21" Insert "19" Page 1, line 8: Delete "21" Insert "19" Page 2, line 5: Delete "21" Insert "19" Delete "21" Insert "19" Page 2, line 15: Delete "21" Insert "19" Page 2, line 31: Delete "21" Insert "19" Page 3, line 7: Delete "21" Insert "19" Page 3, line 21: Delete "21" Insert "19" Page 3, line 22: Delete "21" Insert "19" Page 3, line 30: Delete "21" Insert "19" Page 4, line 25: Delete "21" Insert "19" Page 6, line 22, through page 7, line 1: Delete all material. Renumber the following bill sections accordingly. REPRESENTATIVE ROKEBERG explained that this lowers the age in the committee substitute from 21 to 19, which conforms it to existing state law and to CSSSHB 189(JUD). REPRESENTATIVE CROFT objected for discussion purposes. He asked what the testimony was in the House Labor and Commerce Standing Committee that caused the change from 19 to 21. Number 0827 REPRESENTATIVE KOTT explained that the change was the result of a sponsor substitute, not an amendment. The amendment offered in the Labor and Commerce Standing Committee was to return it to age 19, which he believed had failed by a vote of 5 to 1. Representative Kott said, "It's my understanding that the military establishments would conform to state law, although I would have to confirm that. ... So, I don't think you'd have that hodgepodge of being able to smoke on base and then not being able to smoke downtown." REPRESENTATIVE KOTT said the rationale for increasing it to 21 is that perhaps 3 or 4 percent of smokers begin beyond age 19, such as when they get into the workplace where they are surrounded by adults with the habit. It was just an opportunity to give them an extra year to think about it. Having said that, Representative Kott advised members that he wasn't opposed to the amendment. REPRESENTATIVE CROFT indicated he had no objection to bringing the age back down. He removed his objection. CHAIRMAN GREEN asked whether there was any further objection. There being none, Amendment 1 was adopted. REPRESENTATIVE PORTER offered as Amendment 2 the deletion of Sections 1 and 2, with renumbering as appropriate. REPRESENTATIVE CROFT objected for discussion purposes. REPRESENTATIVE KOTT stated his understanding that this would conform it to the previous bill. He explained, "The reason why we put this in, in this fashion, is that it does establish a penalty, not a flexible penalty that could be adjusted by the magistrate, since it's my understanding that on first offenses, anyone caught using tobacco products under the age are taken before the magistrate, at which point they are issued a $25 fine, even though there is up to $250. ... You know, $25 is not that much of an incentive not to do it. So, the incentive here is to establish a firm $250, no adjustment." REPRESENTATIVE PORTER said since they had reconformed everything to below age 19, he would amend his motion to delete only Section 1, not Section 2. REPRESENTATIVE BERKOWITZ suggested it would have perhaps been simpler if they'd deleted Sections 1 and 2 from the previous bill. He said there is consistency in Representative Kott's bill. CHAIRMAN GREEN noted that there was already a motion on the floor. REPRESENTATIVE PORTER asked for clarification. CHAIRMAN GREEN said, "He was suggesting that we go back to the bill we just passed and rescind their Sections 1 and 2, and leave these here; I believe that's what you had in mind." REPRESENTATIVE BERKOWITZ replied, "That's what I had in mind. And I'm not speaking for or against; I'm speaking during the discussion phase here." Number 1018 REPRESENTATIVE PORTER stated, "In my understanding, the effect of it would be that Section 2 would alter, by increasing the fine capability, not affect anything else that we did in the first bill. Deleting Section 1 would then leave in place what we did in the first bill in that whole area. Whereas Section 3, of course, is a new area." REPRESENTATIVE JAMES asked whether he was talking about the first paragraph of Section 1 or the whole section. REPRESENTATIVE BUNDE said it was the whole section. CHAIRMAN GREEN specified it was (a), (b) and (c). Number 1065 REPRESENTATIVE CROFT noted that CSSSHB 189(JUD) had just amended (d) and added "(g), (h), on through." He stated, "I don't see it affecting (a), (b) and (c) as [SSHB] 159 does." He asked Representative Porter, "If we remove Section 1, you believe that would leave all ... the misdemeanor, now, penalties for selling, and by leaving Section 2 in, would establish, for the first time, a violation for possession?" Number 1107 REPRESENTATIVE PORTER replied, "No. It is currently a violation, ... and we didn't do anything in that area in the first bill. What it would do would set up a higher level of capability of fine ... for an existing violation of possession." REPRESENTATIVE CROFT said he understood Section 2. He asked, "What you're doing on Section 1 would have what effect, as compared to if we didn't adopt your amendment?" REPRESENTATIVE PORTER explained, "By deleting Section 1, this bill then will have no impact on that particular statute, and what will go forward is what we did to that particular statute in the first bill, 189, which was change a violation to a two-stage misdemeanor." REPRESENTATIVE CROFT said, "It leaves (a), (b) and (c) alone in statute, because 189 never touched it, and we're getting rid of the section that touched it in 159. So, we'd leave (a), (b) and (c) of [AS] 11.76.100 as it stands." REPRESENTATIVE PORTER responded, "With the exception that we would change `negligently' to `knowingly', which is what we did in 189 with the amendment." He specified that they'd left in effect AS 11.76.100 in terms of what offenses it incorporates. "And it incorporates the giving or selling of tobacco to a minor," he said. "It changes the standard in that from `negligently' to `knowingly', but when you get down to the (d), which establishes what kind of an offense it is, it takes away the violation and adds the two-stage misdemeanor (indisc.). By deleting Section 1 of the bill we're considering now, we leave all of that in place." Number 1285 REPRESENTATIVE CROFT withdrew his objection. CHAIRMAN GREEN reminded members that Amendment 2 does away with Section 1 and renumbers accordingly. He asked whether there was an objection. There being none, Amendment 2 was adopted. Number 1352 REPRESENTATIVE ROKEBERG noted that page 3, lines 16 through 18, says, "A prosecution for violation of this subsection may not be brought unless a prosecution is also brought for violation of AS 11.76.100." He was double-checking to make sure this wouldn't present a conflict. REPRESENTATIVE PORTER asked whether the concern was about the word "violation." He then explained that a violation of the statute means that one has committed the offense, not that it is or isn't a "violation" or a "misdemeanor." REPRESENTATIVE ROKEBERG said this is okay; AS 11.76.100 is a "broad brush," and there is no citation of an individual subsection. Number 1414 REPRESENTATIVE BUNDE noted the sponsor's indication that underage people caught possessing tobacco receive a $25 fine, which doesn't get their attention; now, with a $250 fine, it will get their attention. He agreed tobacco use is price-sensitive. REPRESENTATIVE PORTER made a motion to move from committee CSHB 159(L&C), as amended, with individual recommendations and any attached fiscal notes. Number 1470 REPRESENTATIVE ROKEBERG objected. He directed members' attention to page 4, lines 13 through 18, which says, "(g) A person who violates this section is guilty of a violation and upon conviction ...." Noting that it relates to the endorsement and to restrictions on the sale of tobacco and tobacco products, he asked whether they need to conform this to CSSSHB 189(JUD) as well. REPRESENTATIVE CROFT replied that this is AS 11.76.107, selling without the proper endorsement or without doing the proper carding, which logically may be a violation. Number 1535 REPRESENTATIVE PORTER stated, "The offense for which this (g) section refers, I think, is a person engaging in the business failing to properly instruct their employees. I think that is sufficiently different from the other offenses of actually giving to the minor that I would not be uncomfortable with that designation. ... I don't feel strongly one way or the other. ... But we made a crime out of the offense of giving it to the minor; this is a violation for an employer not appropriately notifying his employees of something." REPRESENTATIVE CROFT indicated he'd stopped to make sure he was correct. He stated, "I read it as it being a violation to sell this without the proper license; to not demand proof of age when you should; to put your vending machine in an improper place; or to not, as Representative Porter says, train your clerks correctly. ... It would be appropriate to have those technical, if you will, violations be a violation and the actual proved selling to a minor be a misdemeanor." He said it wouldn't be inconsistent. He suggested the committee could make that choice. Number 1620 REPRESENTATIVE PORTER referred to page 3, lines 19 and 29, which says, "(d) A person engaged in the retail business of selling a tobacco product shall notify each individual employed" of all of those things. He stated, "So, the offense that we're saying is a violation is his or her failure to notify the employees that those things are offenses. If the employee violates that provision, they still are guilty of a misdemeanor, as we have established." REPRESENTATIVE CROFT agreed but pointed out that it says, "A person who violates this section"; it doesn't say "subsection". He stated, "So, it's the entire .107. ... You're right on that, but in addition, (a), (b). [Subsection] (b) says you may not sell tobacco via vending machine; so, if you do, even to someone overage, if it's in the improper place, you could commit a violation. [Subsection] (c) says a person engaged shall demand proof. If you fail to demand proof of somebody who is 26, that's a violation; if they're 19, that's a misdemeanor." REPRESENTATIVE CROFT continued, "And so, all down the line, it seems at least a reasonable distinction it's making between violating some of the technical I-put-my-machine-in-the-wrong- place, I-didn't-card-when-I-should-have, but it didn't turn out to be selling to a minor; it's just it violated these prophylactic measures, if you will. And so, in each of those, I think you can make at least a reasonable argument that violating them is somewhat lesser ... than doing the misdemeanor of selling, actually, to a minor." REPRESENTATIVE ROKEBERG asked whether that is the sponsor's interpretation. REPRESENTATIVE KOTT said that is his interpretation. Number 1743 REPRESENTATIVE ROKEBERG expressed concern about sales provisions, being consistent with the prior bill. He mentioned particular concern about vending machines. REPRESENTATIVE JAMES said the prior bill didn't deal with vending machines. CHAIRMAN GREEN agreed but noted that it is still a sale. REPRESENTATIVE ROKEBERG said, "It's a sale, right. I mean, you have an endorsed premise, you have the right to have the vending machine, but then this is a matter of control over it. ... Here, in this bill, you have a violation subject to the penalty clause only, whereas in the other bill, you'd have a misdemeanor." REPRESENTATIVE PORTER stated, "But again, if I may, Mr. Chairman, the offense is for just inappropriately having the vending machine someplace, not selling to the minor. Any situation that results in selling to the minor turns out to be a crime." REPRESENTATIVE ROKEBERG referred to page 1 of CSSSHB 189(JUD), lines 12 through 14. He then stated, "In existing law, it says, `who maintains a vending machine in violation of (a)(2) of this subsection commits a violation and upon ... a conviction is punishable by a fine of not less than $300.' Well, we got a little inconsistent, 50 bucks' worth. And the $300 is in existing statute now. But I think, Mr. Chairman, if I recall the bill sponsor's endeavor, he wanted to stair-step it, rather than just keep it a flat $300." CHAIRMAN GREEN asked whether the sponsor would entertain a friendly amendment that the first step would be $300, as it is in existing law, rather than $250, with the second step being $500. REPRESENTATIVE KOTT said he'd go along with whatever the committee wanted. REPRESENTATIVE ROKEBERG offered Amendment 3: "Page 4, line 14, deleting `$250' and adding `$300'." Number 1933 REPRESENTATIVE BERKOWITZ objected for discussion purposes. He mentioned district court and asked Anne Carpeneti about potential problems in terms of raising the amount above $250, which may entitle someone to a jury trial. ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law, explained, "The supreme court recently held in Dutch Harbor Seafoods that a person who could be fined for $250 under the civil provisions of ... the constitution would be given a right to a jury trial if ... the civil fine was more than $250. That has been withdrawn by the court, and we have asked them to reconsider that decision. And they are reconsidering it now. ... We are proceeding as if they hadn't made that decision at this point. But we're not very firm on that because they haven't reissued their opinion. But they did withdraw it, and it is being briefed as we speak. We don't expect a decision before fall." CHAIRMAN GREEN asked, "So, are you suggesting, then, in the prior bill, where we still have it in statute at $300, that that should perhaps be reduced?" MS. CARPENETI replied, "At this point, I wouldn't suggest that because the opinion has been withdrawn, and when it happens, I suppose, then ... we would recommend that you make adjustments. But until that decision is issued finally, I wouldn't suggest that. I personally wouldn't. Number 2092 REPRESENTATIVE BERKOWITZ said he wanted to be clear on what the Dutch Harbor Seafoods case did, as he hadn't seen it. He stated, "Anything, whether it comes under the criminal code or not under the criminal code, ... a potential fine of $250 or more would allow the defendant to seek a jury trial." MS. CARPENETI said although she hadn't read the opinion in several months, she believed it was in excess of $250. After reading that opinion, they'd concluded $250 was "safe" from having a jury trial hinge on it. REPRESENTATIVE BERKOWITZ asked whether the access to a jury trial is contingent upon the amount of potential fine, rather than the fine actually imposed. MS. CARPENETI replied, "I believe so, yes." Number 2164 REPRESENTATIVE CROFT said his concern was different. He referred to Representative Porter's amendment and noted that they'd left in (a), (b) and (c) of AS 11.76.100. He stated, "It defines where you can and cannot have a vending machine and defines, as we're looking at it, that is a violation, a fine of $300. We have a violation of $250 here. So, that's one ... inconsistency." REPRESENTATIVE CROFT continued, "The more important inconsistency, I think, is that it restricts it in different places. And so, under the provision in current law, it says, basically, `you can't sell to a minor or have a vending machine at all,' and then (b) says, `but you can have it in these situations.' So, in (b), it says you can have it on a licensed premises, generally, as long as it's as far as practical from the primary entrance and supervised. In this section, we say, `you can have it where alcoholic beverages are sold,' basically the same thing. And it has the supervision. But is says, `and inaccessible.' So, ... they both have to be supervised in a place where alcohol is served, but one has to be as far as practical from the primary entrance; if you don't do that, you get hit for $300. If it's not inaccessible to the public where the licensed public is closed, a different kind of thing, it's $250. And I guess you'd have to do all three to escape liability by these two competing sections." REPRESENTATIVE CROFT continued, "Not only that, the only other section in .100 is a break room exception. So, you can either have it on a `licensed alcohol' with these, or a break room, and this has other partially overlapping but somewhat contradictory exceptions to it." TAPE 97-77, SIDE A Number 0006 REPRESENTATIVE PORTER offered a conceptual amendment. Considering that they didn't know what the result of the jury trial issue would be, he'd feel more comfortable "moving the $300 back to $250 but adding, instead of the mandatory $250, the language that we had in the $300, `no less than'." He explained, "The $250, we've got a fine of $250, period. But in the section that we're concerned about, that's inconsistent with the $300, it says, `no less than $300,' wherever the heck it was." An unidentified speaker said he believed it was .100(d). Number 0043 REPRESENTATIVE PORTER continued, "So, what I would suggest would be that we ask the bill drafter to do two things: Make the two fines no less than $250 and the middle one there, also, no less than $500, so as to be consistent. Can you fine for more than $1,000 in a violation? I think you can. So, no less than $1,000, also. And to adopt ... the more restrictive language for the placement of the vending machine, in both areas." He indicated he didn't know whether the new or old language was more restrictive. CHAIRMAN GREEN asked whether they'd still have a conflict, as this says "no less than $250", while the prior bill says "no less than $300." He mentioned going back to the previous bill. REPRESENTATIVE PORTER replied, "We don't have to change that bill." REPRESENTATIVE ROKEBERG suggested they could easily rescind the action on the previous bill, so that it would be on the record, after Representative Porter proceeded with the current amendment. CHAIRMAN GREEN concurred. REPRESENTATIVE PORTER continued with his conceptual amendment, "sans dealing with the $300." He asked that the bill drafter adopt the more restrictive of the language for placement of the vending machine and add to the stepped-up violation fines of no less than $250, no less than $500, and no less than $1,000. Number 0310 REPRESENTATIVE CROFT objected to say he interprets the more restrictive language to be "part of one and part of another, that is, the `where alcoholic beverages are sold.'" He didn't know which was more restrictive, "not near the entrance" or "you can't get into it when it's closed." REPRESENTATIVE PORTER said the more specific one. REPRESENTATIVE CROFT suggested they should choose, because he was a little confused about which is more specific. He asked whether he could make a friendly amendment regarding that, then stated, "Regarding a place where alcoholic beverages are sold, ... both provisions would require supervision. One says, `and far away from the primary entrance.' The other says, `you can't get at them when it's closed.' Which one do we ....?" REPRESENTATIVE JAMES said, "All of them." REPRESENTATIVE CROFT asked, "You want to make all three? I guess it shouldn't be near the entrance and you shouldn't be able to ...." CHAIRMAN GREEN said he liked that. REPRESENTATIVE PORTER agreed. REPRESENTATIVE CROFT continued, "And then just one more thing, so that they know and we don't have a question come back: In the other area, it says, `or you can have one in an employee break room or other controlled area of a private workplace that is not generally considered a public place.' The bill we have in front of us says you can either have it in a factory, business, office, or other place that is not open to the public or a place that is open to the public but to which a person under the age of 21 is denied access. Which of those alternatives does the committee feel is more restrictive?" REPRESENTATIVE ROKEBERG mentioned subsection (2) on page 3, which refers to persons under the age of 21. REPRESENTATIVE CROFT noted that it is now 19. REPRESENTATIVE ROKEBERG agreed, then suggested they could also delete subsection (3), unless there is another area they'd be denied access to, which didn't have alcoholic beverages. REPRESENTATIVE CROFT responded, "I don't know." REPRESENTATIVE ROKEBERG asked whether Representative Croft was worried about the break room. REPRESENTATIVE CROFT indicated he was just worried that they say which is more specific. He said, "And I don't even know in these two." He mentioned the break room or other controlled area of a private workplace. REPRESENTATIVE ROKEBERG suggested that would be more restrictive than subsection (1). REPRESENTATIVE CROFT agreed that the statute, as it stands, "with section (2), employee break room or other controlled area of a private work place," would be the more restrictive and, therefore, the one they intend to incorporate. REPRESENTATIVE PORTER responded, "That's it. And we incorporated the best of both out of the first one." CHAIRMAN GREEN and REPRESENTATIVE CROFT agreed. REPRESENTATIVE ROKEBERG asked whether this is part of a change to Amendment 3 or another amendment. REPRESENTATIVE PORTER said it is a new amendment. CHAIRMAN GREEN named it Amendment 4. REPRESENTATIVE ROKEBERG asked whether they had adopted Amendment 3, "which raised it up to $300." CHAIRMAN GREEN said, "We did, yes." He asked for a clarification so that there was no question about Amendment 4. REPRESENTATIVE PORTER explained that the noncontroversial part is what they are doing to subsection (c), beginning at page 1, line 13, and continuing to page 2, lines 1 and 2, adding "no less than" in front of the $250 figure, the $500 figure, and the $1,000 figure. In addition, they are adopting, in the placement of the vending machine, "both languages, the existing statute and the bill, that would end up saying, `not available after closing and as far away as practical,' or whatever the wording is, `from the entrance.'" CHAIRMAN GREEN commented, "You can't access it." REPRESENTATIVE CROFT said, "Right. And that's for ... places where alcoholic beverages are sold. And the more restrictive other definition, which is in place of (1) and (2) on page 3, lines 4 through 7, we used the language from the current statute, which is 11.76.100(b)(1), (b)(2), `in an employee break room or other controlled area of a private workplace that is not generally considered a public workplace', and that that's more restrictive than (1) and (2) in ... those sections." REPRESENTATIVE CROFT removed his objection. CHAIRMAN GREEN asked whether there was any further objection. There being none, Amendment 4 was adopted. REPRESENTATIVE ROKEBERG made a motion to rescind Amendment 3. There being no objection, it was so ordered. REPRESENTATIVE ROKEBERG made a motion to temporarily table SSHB 159 for the purposes of rescinding their action on SSHB 189 and making a specific amendment. There being no objection, it was so ordered. SSHB 189 - RESTRICT TOBACCO SALES CHAIRMAN GREEN announced that the committee would again hear Sponsor Substitute for House Bill No. 189, "An Act relating to sale of tobacco and tobacco products; and providing for an effective date." REPRESENTATIVE ROKEBERG made a motion to adopt an amendment to page 1, line 14, to delete "$300" and insert "$250". There being no objection, it was so ordered. Number 0835 REPRESENTATIVE ROKEBERG made a motion to move 0-LS0711\F, Ford, 4/21/97, as amended, from the committee. There being no objection, CSSSHB 189(JUD) moved from the House Judiciary Standing Committee. SSHB 159 - TOBACCO PURCHASE, POSSESSION, SALE, ETC. CHAIRMAN GREEN announced the committee would again hear Sponsor Substitute for House Bill No. 159, "An Act relating to sale, gift, exchange, possession, and purchase of tobacco and tobacco products; and providing for an effective date." He noted that they had significantly amended the bill that day. REPRESENTATIVE ROKEBERG made a motion to move CSSSHB 159(L&C), version 0-LS0287\P, as amended, from committee with individual recommendations and attached fiscal note. There being no objection, CSSSHB 159(JUD) moved from the House Judiciary Standing Committee. ADJOURNMENT Number 1024 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee meeting at 3:21 p.m.