03/18/2004 02:15 PM House JUD
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ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 18, 2004
2:15 p.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
PRESENTATION: JUAN MELENDEZ, FORMER DEATH ROW INMATE
- HEARD [See 1:15 p.m. minutes for this date]
CS FOR SENATE BILL NO. 30(JUD) am
"An Act relating to information and services available to
pregnant women and other persons; and ensuring informed consent
before an abortion may be performed, except in cases of medical
emergency."
- HEARD AND HELD
CS FOR SENATE BILL NO. 203(FIN) am
"An Act relating to administrative hearings, to hearing
officers, and to administrative law judges; establishing the
office of administrative hearings and relating to that office;
and providing for an effective date."
- MOVED HCS CSSB 203(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 447
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
- MOVED CSHB 447(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 428
"An Act relating to civil liability for acts related to
obtaining alcohol for persons under 21 years of age or for
persons under 21 years of age being on licensed premises."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 30
SHORT TITLE: ABORTION: INFORMED CONSENT; INFORMATION
SPONSOR(S): SENATOR(S) DYSON
01/21/03 (S) READ THE FIRST TIME - REFERRALS
01/21/03 (S) HES, JUD, FIN
03/17/03 (S) HES AT 1:30 PM BUTROVICH 205
03/17/03 (S) Heard & Held
03/17/03 (S) MINUTE(HES)
03/26/03 (S) HES AT 1:30 PM BUTROVICH 205
03/26/03 (S) Heard & Held
03/26/03 (S) MINUTE(HES)
04/03/03 (S) HES AT 5:00 PM BELTZ 211
04/03/03 (S) Heard & Held
04/03/03 (S) MINUTE(HES)
04/09/03 (S) HES AT 1:30 PM BUTROVICH 205
04/09/03 (S) Heard & Held
04/09/03 (S) MINUTE(HES)
04/14/03 (S) HES AT 1:30 PM BUTROVICH 205
04/14/03 (S) Moved CSSB 30(HES) Out of Committee
04/14/03 (S) MINUTE(HES)
04/15/03 (S) HES RPT CS 2DP 1DNP 1NR SAME TITLE
04/15/03 (S) DP: DYSON, GREEN;
04/15/03 (S) DNP: DAVIS; NR: WILKEN
05/02/03 (S) JUD AT 1:00 PM BELTZ 211
05/02/03 (S) Heard & Held
05/02/03 (S) MINUTE(JUD)
05/03/03 (S) JUD AT 9:00 AM BELTZ 211
05/03/03 (S) Moved CSSB 30(JUD) Out of Committee
05/03/03 (S) MINUTE(JUD)
05/06/03 (S) JUD RPT CS 3DP SAME TITLE
05/06/03 (S) DP: SEEKINS, THERRIAULT, OGAN
05/12/03 (S) FIN AT 9:00 AM SENATE FINANCE 532
05/12/03 (S) Moved Out of Committee
05/12/03 (S) MINUTE(FIN)
05/12/03 (S) FIN RPT CS(JUD) 3DP 3NR 1AM
05/12/03 (S) DP: GREEN, TAYLOR, STEVENS B;
05/12/03 (S) NR: WILKEN, HOFFMAN, BUNDE; AM: OLSON
05/16/03 (S) TRANSMITTED TO (H)
05/16/03 (S) VERSION: CSSB 30(JUD) AM
05/16/03 (H) READ THE FIRST TIME - REFERRALS
05/16/03 (H) HES, JUD, FIN
05/17/03 (H) HES AT 1:00 PM CAPITOL 106
05/17/03 (H) Moved HCS CSSB 30(HES) Out of Committee
05/17/03 (H) MINUTE(HES)
05/17/03 (H) HES RPT HCS(HES) 4DP 1NR
05/17/03 (H) DP: SEATON, COGHILL, WOLF, WILSON;
05/17/03 (H) NR: CISSNA
02/18/04 (H) JUD AT 1:00 PM CAPITOL 120
02/18/04 (H) Heard & Held
02/18/04 (H) MINUTE(JUD)
03/18/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 203
SHORT TITLE: ADMINISTRATIVE HEARINGS/OFFICE
SPONSOR(S): RULES BY REQUEST
04/29/03 (S) READ THE FIRST TIME - REFERRALS
04/29/03 (S) STA, JUD, FIN
05/06/03 (S) STA AT 3:30 PM BELTZ 211
05/06/03 (S) Moved CSSB 203(STA) Out of Committee
05/06/03 (S) MINUTE(STA)
05/07/03 (S) STA RPT CS 1DP 3NR SAME TITLE
05/07/03 (S) DP: STEVENS G;
05/07/03 (S) NR: COWDERY, GUESS, DYSON
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
05/09/03 (S) Heard & Held
05/09/03 (S) MINUTE(JUD)
01/30/04 (S) JUD AT 8:00 AM BUTROVICH 205
01/30/04 (S) Heard & Held
01/30/04 (S) MINUTE(JUD)
02/06/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/06/04 (S) Moved CSSB 203(JUD) Out of Committee
02/06/04 (S) MINUTE(JUD)
02/09/04 (S) JUD RPT CS 3DP 1NR NEW TITLE
02/09/04 (S) DP: SEEKINS, THERRIAULT, OGAN;
02/09/04 (S) NR: FRENCH
02/19/04 (S) FIN AT 9:00 AM SENATE FINANCE 532
02/19/04 (S) Bill Postponed
02/23/04 (S) FIN AT 10:00 AM SENATE FINANCE 532
02/23/04 (S) Heard & Held
02/23/04 (S) MINUTE(FIN)
02/26/04 (S) FIN AT 9:00 AM SENATE FINANCE 532
02/26/04 (S) Heard & Held
02/26/04 (S) MINUTE(FIN)
03/01/04 (H) FIN AT 9:00 AM HOUSE FINANCE 519
03/01/04 (S) Scheduled But Not Heard
03/02/04 (S) RLS TO CALENDAR 3/3/04
03/03/04 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/03/04 (S) Moved CSSB 203(FIN) Out of Committee
03/03/04 (S) MINUTE(FIN)
03/03/04 (S) FIN RPT CS 5DP 1NR NEW TITLE
03/03/04 (S) DP: GREEN, WILKEN, DYSON, BUNDE,
03/03/04 (S) STEVENS B; NR: HOFFMAN
03/04/04 (S) TRANSMITTED TO (H)
03/04/04 (S) VERSION: CSSB 203(FIN) AM
03/08/04 (H) READ THE FIRST TIME - REFERRALS
03/08/04 (H) JUD, FIN
03/18/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 447
SHORT TITLE: 2004 REVISORS BILL
SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE COUNCIL
02/09/04 (H) READ THE FIRST TIME - REFERRALS
02/09/04 (H) STA, JUD
02/24/04 (H) STA AT 8:00 AM CAPITOL 102
02/24/04 (H) Moved CSHB 447(STA) Out of Committee
02/24/04 (H) MINUTE(STA)
02/26/04 (H) STA RPT CS(STA) 4DP 1NR
02/26/04 (H) DP: HOLM, LYNN, COGHILL, WEYHRAUCH;
02/26/04 (H) NR: BERKOWITZ
03/18/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 428
SHORT TITLE: CIVIL PENALTY: UNDERAGE ALCOHOL PURCHASES
SPONSOR(S): REPRESENTATIVE(S) MEYER
02/04/04 (H) READ THE FIRST TIME - REFERRALS
02/04/04 (H) L&C, JUD
02/25/04 (H) L&C AT 3:15 PM CAPITOL 17
02/25/04 (H) Moved Out of Committee
02/25/04 (H) MINUTE(L&C)
02/26/04 (H) L&C RPT 5DP
02/26/04 (H) DP: CRAWFORD, LYNN, ROKEBERG,
02/26/04 (H) GUTTENBERG, GATTO
03/18/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
DAVID A. INGRAM
Juneau, Alaska
POSITION STATEMENT: During discussion of SB 203, offered
comments and suggested changes.
EDWARD H. HEIN
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 203 and
responded to questions.
DAVID STANCLIFF, Staff
to Senator Gene Therriault
Joint Committee on Administrative Regulation Review
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke on behalf of Senator Therriault,
Chair of the Joint Committee on Administrative Regulation
Review, regarding SB 203, which was sponsored by the Senate
Rules Standing Committee by request of the Joint Committee on
Administrative Regulation Review.
ANDREW HEMENWAY, Hearing Officer: Procurement & Longevity Bonus
Hearings and Appeals
Office of the Commissioner
Department of Administration (DOA)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
SB 203.
PAM FINLEY, Revisor of Statutes
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Speaking as the revisor of statutes,
presented HB 447 and responded to questions.
REPRESENTATIVE KEVIN MEYER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 428.
BRENDA SADLER, President
Fairbanks Chapter
Mothers Against Drunk Driving (MADD)
North Pole, Alaska
POSITION STATEMENT: During discussion of HB 428 asked for
support of the bill.
CINDY CASHEN, Executive Director
Juneau Chapter
Mothers Against Drunk Driving (MADD)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 428 on behalf of
the Juneau and Anchorage chapters of MADD.
LOGAN SPENCER
Youth in Action (YIA)
Mothers Against Drunk Driving (MADD)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 428 provided
comments and urged passage of the bill.
O.C. MADDEN III
Brown Jug, Inc.
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 428 provided
comments and responded to questions.
DALE FOX, Executive Director
Cabaret Hotel Restaurant & Retailers Association (CHARR)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 428 and
responded to questions.
SUZANNE CUNNINGHAM, Staff
to Representative Kevin Meyer
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 428, assisted the
sponsor, Representative Meyer, by responding to questions.
ACTION NARRATIVE
TAPE 04-39, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting back to order at 2:15 p.m. Representatives
McGuire, Anderson, Holm, Ogg, Samuels, Gara, and Gruenberg were
present at the call back to order. [For the presentation by
Juan Melendez, former death row inmate, see the 1:15 p.m.
minutes for this date.]
SB 30 - ABORTION: INFORMED CONSENT; INFORMATION
Number 0021
CHAIR McGUIRE announced that the next order of business would be
CS FOR SENATE BILL NO. 30(JUD) am, "An Act relating to
information and services available to pregnant women and other
persons; and ensuring informed consent before an abortion may be
performed, except in cases of medical emergency." [Before the
committee was HCS CSSB 30(HES).]
CHAIR McGUIRE mentioned that public testimony is closed with the
exception of written testimony, which the committee will still
entertain. She relayed that just today the attorney general
provided the committee with a legal analysis of the proposed
House committee substitute (HCS) for SB 30, Version 23-LS0193\N,
Mischel, 2/18/04; this analysis is dated 3/18/04.
CHAIR McGUIRE suggested that the committee incorporate the
specific recommendations listed in attorney general's legal
analysis into a forthcoming HCS. She explained, however, that
there are other aspects of the analysis that she does not mean
to have incorporated into a proposed HCS, such as the references
to potential privacy challenges, to potential equal protection
challenges, and to potential costs associated with [such
challenges]. What she would like to incorporate, she relayed,
is the recommendation to return to the bill the language
requiring that the information in the pamphlet be "unbiased
information that is reviewed and approved for medical accuracy
and appropriateness by recognized obstetrics and gynecological
specialists"; the recommendation that a disclaimer be given on
the web site; the recommendation that people be given a choice
regarding inclusion in the pamphlet; the recommendation to
remove the provision regarding a 24-hour waiting period; and a
number of other [specific] recommendations that are outlined.
Number 0213
CHAIR McGUIRE made a motion "that the specific recommendations
outlined in the March 18, 2004, letter by the attorney general
be incorporated into a new [House Judiciary Standing Committee
HCS]."
Number 0260
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
He said that although he likes the procedure, he isn't saying
that he likes the proposed changes, embodied in the legal
analysis, on their merits.
REPRESENTATIVE OGG offered his understanding that the only
portion of a woman's pregnancy that doesn't require a
consultation is the first trimester, and surmised that "this is
aiming towards that." He said that his hope is that the
proposed changes will provide direction on this issue.
CHAIR McGUIRE offered her understanding that although the Alaska
Administrative Code already has an informed consent requirement,
it doesn't require it for the first trimester. She indicated
that such is not required by the bill either.
REPRESENTATIVE OGG surmised, then, that consent is required but
consultation is not.
CHAIR McGUIRE concurred. In response to a question, she said
that her motion includes the deletion of the 24-hour waiting
period.
REPRESENTATIVE OGG withdrew his objection.
Number 0440
CHAIR McGUIRE asked whether there were any further objections to
the motion. There being none, the motion carried.
CHAIR McGUIRE announced that SB 30 would be set aside for the
purpose of awaiting the forthcoming HCS.
The committee took an at-ease from 2:24 p.m. to 2:25 p.m.
SB 203 - ADMINISTRATIVE HEARINGS/OFFICE
Number 0464
CHAIR McGUIRE announced that the next order of business would be
CS FOR SENATE BILL NO. 203(FIN) am, "An Act relating to
administrative hearings, to hearing officers, and to
administrative law judges; establishing the office of
administrative hearings and relating to that office; and
providing for an effective date." [Members' packets include a
proposed House committee substitute (HCS) for SB 203, Version
23-LS0903\J, Cook, 3/17/04.]
Number 0553
DAVID A. INGRAM relayed that he is a former hearing officer for
the state, specifically the Commercial Fisheries Entry
Commission (CFEC), and has served for many years as the chair of
the administrative law section for the Alaska Bar Association.
He offered the following:
I have an abiding interest in the improvement of
administrative law in this state, and I speak from a
varied background; I've also taught administrative law
at the university for over the last 20 years. ... I am
such a fan of this bill. I think ... central panels
is just ... an idea who's time has definitely come; in
fact, I think it's way overdue. ... A majority of the
states have some sort of central panel ... - 29
states, something like that. ... I think this is a
major step forward in the improvement of
administrative law in the state. ... I think a central
panel is essential for basically three main reasons.
The appearance of fairness is so much improved if you
have a central panel.
... I assure you, to the people out there who have
been denied benefits, been denied [a] commercial
fishing entry permit, or have [an] adverse action
brought against them by some agency trying to take
away their livelihood, it's very important. ... So the
basic appearance ... [of fairness] is essential. ...
Can you imagine how the public would feel if the
general jurisdiction judges worked for the Department
of Law and were employed and under the supervision and
control of the Department of Law so [that] you've got
their cohorts coming and arguing cases in front of
them. It's the same kind of thing you've got in the
agencies.
Number 0692
MR. INGRAM continued:
Another problem with the current system is that
"ALJ's" - administrative law judges - and hearing
officers are just human, and they work with these
people. If you are employed by and under the
supervision and control of the agencies, they become
family; you're celebrating one another's birthdays,
you're going to parties together, and it's just not
good. ... No matter how much you fight it, your
relationships with those people are bound to affect
your decisions. And this is sort of where the rubber
meets the road - at the agency; ... this is the
hearing where facts are going to be found, and from
that point on, sure, you can appeal it to the courts,
but you're talking about legal error once you get on
appeal. Your one shot at that fact finding is down
there at the agency level, and it should be as fair
and unbiased and unprejudiced and untainted by
relationships as possible.
Finally, ALJs and hearing officers should be removed
from any threats of retribution, whether explicit or
implicit. And as long as they are under the control
and supervision of the agencies, I assure [you that]
they are loath to expose misdeeds, corrupt practices,
and the like that are going on in the agency, because
they fear bad performance reports, denial of pay
increases, demotions, [and other things]; you hear
hearing officers and ALJs at various levels talk about
some ... picayune things ... [like] parking spaces and
... bathroom privileges and what office you get and
the like, but ... what it really comes down to is pay,
and there's always that threat as long as they're
under the thumb of the agencies.
So, ... I've been working with ... Senator Therriault
and Dave Stancliff and Andy Hemenway and the Senate
Judiciary [Standing] Committee, and some earlier
recommendations I had have already been incorporated
into the [House] committee substitute you've got
before you. There's one other, though, [that] I'd
really like you to consider, and that is to strengthen
the language in Section 1 of the bill regarding the
purpose of the Act and the intent to include respect
for an individual's privacy and to prohibit actions
that threaten, intimidate, or harass a member of the
public.
Number 0842
MR. INGRAM concluded:
And as a graphic example as to why something like this
is necessary, and I even gave you some language there
as to how it could be done, I've submitted four pages
from a decision I rendered on January 30 of this year
that discuss an incident where an agency hearing
officer left a message on an individual's telephone
answering machine which I found to violate that
person's right of privacy and, even if it didn't
constitute a threat, certainly constituted
intimidation and harassment. And I would encourage
you to strengthen up the language and send a clear
message that this kind of conduct isn't going to be
tolerated. ... That's all I have, and I thank you very
much for this opportunity to appear; [I'd] be glad to
answer any questions.
CHAIR McGUIRE said that although ideas similar to what is being
proposed via SB 203 were proffered during her time on the Joint
Committee on Administrative Regulation Review, she is glad to
see that now those ideas are finally gaining support. She
thanked Mr. Ingram for his past work and his current efforts.
REPRESENTATIVE GRUENBERG asked Mr. Ingram whether he sees any
other problems with the bill.
MR. INGRAM said he believes that all ALJs and hearing officers
for every agency ought to be swept into a central panel at some
point, although what the bill currently proposes is a good first
step. He offered his understanding that the agencies currently
listed in the bill are those that are willing to go along with
this kind of change and not fight it.
REPRESENTATIVE GRUENBERG noted that this idea is not new; prior
legislators have offered similar legislation in the past.
CHAIR McGUIRE concurred.
Number 1008
REPRESENTATIVE ANDERSON indicated agreement with the concept
embodied in bill. He noted, however, that workers' compensation
is not included.
MR. INGRAM posited that others could speak to that issue.
REPRESENTATIVE ANDERSON mentioned the issue of exempt employees.
MR. INGRAM noted that as a hearing officer for the CFEC, he was
an exempt employee, and he was always kind of disturbed that he
and his fellow hearing officers didn't have some sort of union
protection as did other employees of the Alaska Department of
Fish & Game. He said he would like to see some sort of
protection for hearing officers and ALJs.
REPRESENTATIVE GARA noted that some areas of regulation require
a certain amount of expertise on the part of the ALJs and
hearing officers that hold hearings regarding those areas of
regulation, such as those pertaining to the Regulatory
Commission of Alaska (RCA) and to workers' compensation. He
asked whether RCA and workers' compensation and oil tax ALJs are
included in the bill and would therefore function under a
central panel.
MR. INGRAM offered his understanding that the aforementioned are
not included in the bill, and that it basically just includes
agencies under the purview of the Department of Administration
(DOA) and the Department of Revenue (DOR).
REPRESENTATIVE GARA said he supports the concept of the bill,
but added that he believes that in certain areas of regulation,
the ALJs and hearing officers need a certain amount of
specialized expertise.
MR. INGRAM relayed his understanding that in states that have a
central panel, ALJs and hearing officers from the agencies
requiring a certain amount of expertise are swept into the panel
and are then the ones to hear those types of cases without being
under the control of the associated agency. He mentioned that
the goal of having a central panel is to get the ALJs and
hearing officers with the expertise away from the agencies.
Number 1220
REPRESENTATIVE GARA asked whether ALJs are required to have a
particular legal background.
MR. INGRAM said yes, ALJ's must be members of the [Alaska] Bar
and have two years of experience.
REPRESENTATIVE GARA asked Mr. Ingram whether he felt that two
years of experience is enough.
MR. INGRAM opined that more is better, but remarked that
whenever there is a job opening for an ALJ, there are plenty of
candidates with plenty of experience. He mentioned that the
agency he'd worked for had a rule that a person also had to have
either two years of judging experience or two years of
representing people in trials or before administrative agencies.
In response to a question, he offered his understanding that the
bill only requires two years' membership in the Alaska Bar
Association.
REPRESENTATIVE GARA said that two years of experience could mean
completely different things: two years in a law library is not
the same as two years in court.
MR. INGRAM acknowledged that that requirement could be
strengthened, and suggested that the two years consist of either
judging experience or representing individuals before courts or
administrative agencies.
REPRESENTATIVE GARA pointed out, however, that when lawyers work
for a law firm, they are considered to be representing someone
in court though they may never have to show up in court. He
asked how the latter part of Mr. Ingram's suggestion would be
defined.
MR. INGRAM posited that the question of whether the experience
is adequate would be determined by the chief ALJ, who will be
doing the hiring.
REPRESENTATIVE GARA suggested that perhaps it would be more
practical to require five years of experience, since many
attorneys are still "pretty fresh" with only two years of bar
membership.
MR. INGRAM opined that five years of experience would be better,
adding, "The more experience the better." He surmised that
making more experience a requirement wouldn't seriously limit
the number of applicants.
Number 1401
REPRESENTATIVE OGG asked how the bill has changed from its
original form.
MR. INGRAM indicated that others could speak to that issue.
REPRESENTATIVE OGG asked which agencies would not be
participating.
CHAIR McGUIRE suggested that that issue could be better
addressed by the sponsor's representative.
REPRESENTATIVE OGG asked what were the oldest unresolved cases
in the CFEC's system.
MR. INGRAM said that he knew of "open" cases that were initially
filed in 1975 and 1977, and that there are between 50 and 100
open cases that have had a hearing officer decision since 1982-
1983 but are still unresolved. Part of the problem is that an
applicant receives the benefit of being able to fish until
his/her case is resolved, so from the applicant's point of view,
if it is a bad case, just keeping it alive will result in being
allowed to fish.
REPRESENTATIVE GARA opined that leaving ALJs exempt, which lets
the governor terminate them if he/she is dissatisfied with them,
negates the bill's attempt at taking them out from under the
pressure put upon them by the agencies. He asked Mr. Ingram
whether he thought it would be a good idea to make ALJs
nonexempt.
MR. INGRAM said he did think that would be a good idea, and
further suggested that it might also be a good idea to require
that an ALJ or hearing officer can only be removed for cause,
similar to the requirement for commissioners appointed to
"quasi-judicial" agencies.
Number 1706
EDWARD H. HEIN said that he is the chief appeals officer for the
National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), U.S. Department of Commerce.
He also relayed that he is a member of the Alaska Bar
Association, an officer with the Alaska Association of
Administrative Law Judges, a member of the National Association
of Administrative Law Judges (NAALJ), and was a drafting
attorney with the Legislative Affairs Agency during most of the
1980s. He went on to say:
I'm just here to support the bill generally and to
answer any questions if you have any. My office is
... the federal counterpart to ... [the] CFEC; we do
cases involving the denial of fishing licenses and
privileges. ... I've been involved with this issue and
with both this bill and the previous bill for [the]
past four years. I think this bill is a much-improved
version of what was offered a few years ago. I
support the bill. I'm not here in a representative
capacity, I'm just here to speak on my own although
the [NAALJ] ... generally supports centralized hearing
offices. I think this is a bill that is a good-
government bill. I think it will be good for Alaska;
it places Alaska in the majority of states that have
centralized panels. ...
[There's] basically just four or five issues: ...
independence of the hearing officers, professionalism
of the hearing officers, efficiency, and public
confidence. ... I work within an agency ... but my
office is a separate office within the agency; I'm in
a separate building, ... which ... reinforces the idea
that we're independent. Our record is that we've
reversed the agency [in] about an average of 25
percent of the cases, ... but I think we're the
exception, and I can't speak for a lot of Alaska
agencies. ... I can tell you that there are certainly
other federal agencies that have significant problems
with regard to their independence.
MR. HEIN added:
I use as one example the Social Security
Administration. ... They've had a number of problems
over the years including [the fact that] the ...
agency set up a panel of lawyers to oversee the
decisions that the administrative law judges were
putting out, and they only review cases where the
[ALJ] has found in favor of the claimant. And it has
been a major source of dispute and contention within
the agency .... And there are many other agencies in
other states that have either formally or informally
imposed criteria when it comes time for the hearing
officers' review [of] their performance: they look at
... how many times that they ruled against their own
agency. Those are the kind of things that are awful
abuses ... of the independence, and something which
the central panel ... will go a long way toward
avoiding if not correcting. ...
Number 1905
The professionalism: I think the fact that you would
have a centralized office and a new code of ethics
specifically for the hearing officers that the chief
ALJ would produce and which would be applicable even
under this bill to hearing officers outside the
central panel, I think would be a good move toward
professionalization of the statewide hearing officer
core. [There are] also opportunities for cost
effectiveness in centralized training for the hearing
officers, and of course the qualifications would be
more standardized.
And then efficiency: there's always this argument
between the expertise that a particular hearing
officer [or] a set of hearing officers has within an
agency versus giving a hearing officer a variety of
cases. As I understand it in this bill, it's set up
... so that it could be the case that the hearing
officers who will end up being ALJs under this
centralized panel are already doing the work that they
would be doing in the centralized panel to a great
degree [though not entirely] .... And so essentially
you're taking whatever expertise there might be and
not eliminating it but putting it into the central
[panel]. And to the extent that other expertise is
needed, the [panel] itself will have an opportunity
under this bill, I believe, to provide expertise as
witnesses or as part of the case.
Number 1986
And then public confidence I think is a matter of
perception as much as reality. And ... I'm told ...
that many people come into agencies with ..., if not
the expectation, at least the suspicion that a hearing
officer who works for the agency is already biased in
favor of the agency. And many attorneys that I've
talked to in Alaska have said that ... they go through
the hearing through the agency because they're
required to exhaust their administrative remedies, but
they feel that the real hearing comes when they get to
court.
MR. HEIN continued:
I think if you have a centralized panel and you have
more confidence (indisc. - paper shuffling) and
establishes a record of independence (indisc. - paper
shuffling) I think you have less of that attitude
going in and in fact may have a reduced number of
cases going to court. I think a lot of people,
depending on the case of course, ... even if they lose
their appeal [or] lose their administrative claim, if
they feel that they've had a fair hearing and that ...
their evidence and their case has been adequately
considered, I think it lessens the likelihood that
they're going to want to take it to court and proceed
further. I can't give you any guarantees about that,
but that's my perception.
So, with all that said, I have no opinion about which
agencies and programs should be in or out of the
jurisdiction of the central panel - ... those are
really political decisions - but it's a good bill.
And [the] one other thing I would say is that in
February, ... the Alaska Association of Administrative
Law Judges ... had a public panel discussion on this
bill, and about the issues around it, with four chief
ALJS from other states, and the consensus ... was this
was as good a bill as they've seen and they all
supported it. So with that, if you have any
questions, I'll try to answer them.
CHAIR McGUIRE asked Mr. Hein what kind of protections he has at
the federal level that allow him to retain his independence and
rule without fear of reprisal.
MR. HEIN said that he has the same protections that all other
federal employees have, and noted that there are avenues by
which federal employees can pursue employment grievances.
Without such protections, however, an employee really is at the
mercy of whoever happens to be his/her supervisor, he observed.
He posited that the protections offered by the bill will go
quite a way towards improving the situation for state ALJs and
hearing officers, and that there are probably any number of ways
that even those protections could be strengthened. He opined
that there is a legitimate need for strong protections for
hearing officers and ALJs because there are a lot of subtle
pressures that can be brought to bear on them, particularly when
they are working within an agency; just having a centralized
panel will help that situation.
Number 2177
REPRESENTATIVE GARA asked Mr. Hein what his thoughts are on
requiring at least five years of experience or, if less than
five years, requiring that an applicant has "done" at least two
trials or administrative law hearings.
MR. HEIN replied:
I think you have to have a balance in that ... you
want to have it open to all qualified people, and you
don't want to arbitrarily say you have to have ten
years' experience or five years' experience in these
particular things. ... But on the other hand I would
agree that someone fresh out of law school might not
be the best type of person to hire. It depends. I
think that on the whole, having practical experience
in court or with administrative agencies is a real
plus. On the other hand ..., the role of a hearing
officer is different than the role of an advocate, and
I think that there are a lot of lawyers who make great
advocates but would not make good hearing officers
because they have a different temperament.
So ... I think it's important that you hire someone
who's able to make a decision and who's able to write
well and ... is sensitive to the public, not ... only
getting due process and a fair hearing in fact, but
also having the appearance of doing so, both to the
general public and to the people who come before you.
As I say, ... even if a person loses and you have to
deny their claim, I think you at least want to make
sure that they know that they've gotten a fair hearing
and that you've honestly considered all the evidence
and that you've given them their day in court. So not
everybody is suited to do that sort of work, and I
think you're going to attract people who want to play
that role rather than an advocate.
Number 2271
MR. HEIN concluded:
So I don't think you necessarily have to have a lot of
advocacy in order to be a good hearing officer; I
think you have to have those sensitivities. So in
terms of setting up requirements, I think there should
be a basic threshold, and I think this bill does that.
I think it's very important to have legal training
and, if necessary, to be a licensed attorney. ... I
think this [bill] sets a nice balance in that with the
two years' [experience] and then for the chief [ALJ]
five years. But on the other hand, the chief ALJ is
going to chose from those who apply, ... and the
market may fluctuate ... [and so] it depends on how
you pay these people and what kind of reputation the
panel develops as to how attractive it will be to
people.
REPRESENTATIVE GARA indicated that he would be comfortable
requiring five years' experience, though would not be as
comfortable requiring only two years' experience [if] an
applicant has never "done" either a trial or an administrative
hearing. He opined that an applicant should at least be
familiar with the process of introducing evidence. He asked Mr.
Hein whether he has any concerns regarding that issue.
MR. HEIN indicated that it would be a good idea for a person
with only two years' experience to have at least some trial
experience or administrative hearing experience. He noted,
however, that extensive training is available for people who
hold positions similar to his.
TAPE 04-39, SIDE B
Number 2380
MR. HEIN indicated that such training is available through
federal programs and national organizations. He relayed his
understanding that the majority of hearing officers across the
country are not lawyers, and this is one of the reasons that
training is available. However, he said he does think that
lawyers have more sensitivity and understanding of due process
and other [related] issues, but would not say that it's
impossible to be a good hearing officer without being a lawyer.
He concluded by reminding members that in the end, it will be up
to the chief ALJ to pick from those who apply.
CHAIR McGUIRE ascertained that a representative from the Child
Support Enforcement Division (CSED) was available to answer
questions should the committee have any for that division.
Number 2307
DAVID STANCLIFF, Staff to Senator Gene Therriault, Joint
Committee on Administrative Regulation Review, Alaska State
Legislature, spoke on behalf of Senator Therriault, Chair of the
Joint Committee on Administrative Regulation Review, regarding
SB 203, which was sponsored by the Senate Rules Standing
Committee by request of the Joint Committee on Administrative
Regulation Review. He said:
Basically, we set out to build the best model we could
build, to do the least disruption to the existing
system, as this transition away from captive judges in
agencies becomes a centralized, highly-trained,
highly-motivated, report-to-the-public, funded-
separately group. To do that, we needed to be
sensitive to the fact that the ALJs that would be
stationed there needed to have the expertise that was
going to be coming to them. And so we kind of matched
the hearing officers with the expertise, and then we
looked at the areas that ... require highly trained
technical expertise, such as Representative Gara has
mentioned, and we decided to exclude those: workers'
[compensation], RCA, rate hearings, those types of
things.
We also looked at some of the boards and commissions
that the legislature has seen fit to empower as
adjudicatory bodies; some of these commissions are
specifically set up and designed in boards to
deliberate and to provide adjudication, so they
weren't a neat fit. What you have left, from a list
of about a little over 50, is now a list pared down by
about 25 percent that matches what the office will be
able to do with the expertise that will be coming into
the office, with the resources that will be available
for the office. And other states' experiences have
been, once you show that this works, and once the
model works and the agencies start getting comfortable
with it - we gave the agencies options to use the
hearing officers, as they see fit, out of the model -
this all becomes a very orderly, meaningful
transition. That's how we got to the list that we got
to.
Number 2189
CHAIR McGUIRE surmised, then, that future legislators might
promote inclusion of other agencies.
REPRESENTATIVE GRUENBERG relayed that according to discussions
he'd had with Annette Kreitzer, Chief of Staff, Office of the
Lieutenant Governor, she'd been anticipating that the procedures
pertaining to notary publics would be included in SB 203. He
asked whether such was included.
Number 2148
ANDREW HEMENWAY, Hearing Officer: Procurement & Longevity
Bonus, Hearings and Appeals, Office of the Commissioner,
Department of Administration (DOA), said, "What we did is try to
create a list that was the universe of hearings and then we
sorted through that list, and I don't recall seeing something
like that on any list ...."
REPRESENTATIVE GRUENBERG expressed an interest in adding [notary
publics] to the list.
REPRESENTATIVE HOLM indicated that he is comfortable with the
legislation, though he is concerned with whether there will be
appropriate oversight [of the central panel].
REPRESENTATIVE ANDERSON relayed that he supports the
legislation.
REPRESENTATIVE GARA indicated that he'd like to address "the
nonexempt issue" via a conceptual amendment.
MR. STANCLIFF said:
That has been the focus of much debate and much
deliberation and much compromise. The compromise that
we reached was that the protections that are in this
bill now are not the full protections - which we've
been told we shouldn't do, from models in other
states. However, they are the protections that are
modeled after [the Division of Elections] employees,
where they can't simply be removed, that there's a
hearing process that they have; they have a process to
protect them from indiscriminate behavior from a
supervisor, but you don't rise to the level of a full
"PX" (ph) position. So that was a compromise that the
administration was willing to make, that the people
within, that are working now as hearing officers, are
willing to accept, that come into the panel. And
that's how we got where we're at. Andy has specifics
on that "custom PX" that we've created here.
Number 2039
MR. HEMENWAY added:
It's on page 6 of the draft [HCS] at the top. Lines
6-8 [state] that even though they are partially
exempt, notwithstanding that most partially exempt
don't have to go through the personnel rules to be
disciplined, these positions are subject to the
personnel rules adopted under the personnel Act. And
[in] those specific provisions - [AS 39.25.150(7) and
(15)-(16)] - [paragraph] (7) is the one that deals
with the probationary period, so you get a one-year
probationary period during which time your performance
is assessed and [if] it's not satisfactory, you could
be dismissed; after that, [paragraphs] (15) and (16)
kick in - those are the disciplinary and dismissal
provisions of the personnel rules - and they apply to
these hearing officers. And one of the rules ...
states that you can only be dismissed for just cause
....
REPRESENTATIVE GARA surmised, then, that [dismissal for] just
cause applies after the one-year probationary period.
MR. HEMENWAY concurred, adding that they'd wanted to provide
flexibility on the "hiring side" while providing protections on
the "discharge side."
REPRESENTATIVE GARA turned attention to proposed AS
44.64.030(a)(19), which starts at the bottom of page 4 and ends
at the top of page 5. He asked whether the statutes proposed in
this language pertain to rate-setting issues.
MR. STANCLIFF indicated that they do not, and noted that the
definition section of the bill specifies that hearings conducted
by the central panel won't include rate-setting hearings.
REPRESENTATIVE GARA commended Mr. Stancliff for his work on this
difficult issue. "The bill sounds good, strong, needed, and
done right," he added.
REPRESENTATIVE GRUENBERG indicated that he intended to offer Mr.
Ingram's suggested language as an amendment.
MR. STANCLIFF said he is comfortable with having that language
added to the intent section of the bill.
Number 1875
CHAIR McGUIRE inquired about the possibility of adding, to the
list on pages 4-5, statutes pertaining to the legislative ethics
Act. She suggested that it might be best if hearings pertaining
to such issues were conducted by the central panel.
MR. STANCLIFF indicated that that issue had not heretofore been
discussed, offered to give it consideration, but warned that
some legislators might have discomfort with allowing employees
of the executive branch to adjudicate issues pertaining to the
legislative branch.
CHAIR McGUIRE remarked that she likes the model being proposed
by SB 203 and is simply thinking in terms of perhaps in the
future applying it to other areas, such as legislative ethics
hearings, as well.
REPRESENTATIVE GARA indicated that he would have concerns about
having hearings pertaining to legislative ethics conducted by
executive branch employees; it would be too easy for partisan
politics to hold sway in such a situation. Although the current
system regarding legislative ethics may not be perfect and might
perhaps be looked at in the future with the goal of making it
better, at least right now both parties are represented in equal
number, he added.
REPRESENTATIVE GRUENBERG, noting that the chief ALJ is to be
appointed by the governor and confirmed by the legislature,
asked why the bill does not propose to use the method currently
used by the Alaska Judicial Council (AJC) regarding the
appointment of judges, wherein the AJC nominates persons and
then the governor chooses from those nominees.
MR. STANCLIFF indicated that the bill was based on models used
in other states, with the premise being that because the chief
ALJ would perform duties as part of the executive branch, it
would be more appropriate for the appointment process to start
with the governor.
Number 1551
REPRESENTATIVE GRUENBERG clarified that he is more concerned
about the issue of subjecting the chief ALJ to confirmation by
the legislature, since that process can be very political in
nature.
MR. STANCLIFF relayed that although the attorney general
recommended not using the legislative confirmation process, an
amendment adding that process was offered on the Senate floor by
Senator Guess and was adopted unanimously.
REPRESENTATIVE GRUENBERG said he still has concerns about that
issue. He then turned attention to page 2, line 25, which
stipulates that the governor can remove the chief ALJ from
office only for just cause and after a hearing conducted by the
attorney general. He said he has concern about the latter
aspect of that stipulation because such a hearing could end up
being political in nature. He asked why such a hearing couldn't
be conducted by the Commission on Judicial Conduct (CJC).
MR. STANCLIFF offered that the intent was that any given
administration should have some influence on the process, and
that the level of that influence is up to the legislature to
decide. The object, he noted, is to get the best qualified
person for the position, someone who will operate independently
and bring together a highly trained, highly motivated, efficient
and fair panel. In response to a question, he relayed that it
is only the chief ALJ that is subject to legislative
confirmation and a hearing conducted by the attorney general.
CHAIR McGUIRE mentioned that it was time to consider amendments
to the bill.
Number 1318
REPRESENTATIVE ANDERSON moved to adopt the proposed House
committee substitute (HCS) for SB 203, Version 23-LS0903\J,
Cook, 3/17/04, as the work draft. There being no objection,
Version J was before the committee.
Number 1304
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 1, "to add to the list, disciplinary proceedings
involving notaries public." There being no objection,
Conceptual Amendment 1 was adopted.
Number 1291
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2, to
replace the language in paragraph (2) of Section 1 with Mr.
Ingram's suggested language, which reads [original punctuation
provided]:
(2) ensure respect for the privacy and dignity of
the individuals whose cases are being adjudicated [;]
and protect them from threats, intimidation, and
harassment;
CHAIR McGUIRE asked whether there were any objections to
Amendment 2. There being none, Amendment 2 was adopted.
REPRESENTATIVE GRUENBERG turned attention back to page 2, lines
[22 and 25], which pertain to the appointment and removal of the
chief ALJ, and again mentioned the possibility of having the CJC
involved in the process.
MR. HEMENWAY relayed that he'd spoken with the executive
director of the CJC, Marla Greenstein, about possibly having the
CJC become involved in the process, but Ms. Greenstein had
expressed concerns about constitutional issues.
REPRESENTATIVE GRUENBERG said he is still concerned about the
appointment and removal processes as currently proposed.
MR. STANCLIFF offered that including legislative confirmation in
the appointment process does add some balance to that process.
He relayed that the sponsor is still open to suggestions for
improving the bill.
REPRESENTATIVE GARA opined that involving the CJC in the
appointment process would create a constitutional problem. He
then offered his belief that including the attorney general in
the removal process is a bad idea and could become something of
a farce, and suggested that simply allowing the governor to
remove the chief ALJ for good cause is sufficient.
Number 1055
REPRESENTATIVE GARA made a motion to adopt Amendment 3, on page
2, line 25, to remove, "and after a hearing conducted by the
attorney general".
Number 1046
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG said he supports Amendment 3.
REPRESENTATIVE SAMUELS said he agrees that having the attorney
general involved in the removal process could create
difficulties.
Number 0973
CHAIR McGUIRE, after removing her objection, asked whether there
were any further objections. There being none, Amendment 3 was
adopted.
REPRESENTATIVE GRUENBERG asked whether there is anything in the
bill that would prohibit looking at the percentage of rulings
against an agency as part of an ALJ's performance evaluation.
MR. STANCLIFF replied:
There's some excellent models, through both Maryland
and Colorado, that get to that very point. They want
to survey for public acceptance and public approval;
they do not want to start rating them according to how
they rule this way or the other. And I can get a copy
of that for Representative Gruenberg. We're going to
provide all those materials. And I might add for the
committee's comfort here that both Ed Felter (ph), who
is ... [an] internationally respected central panel
expert, and John Hardwood (ph) will have availed
themselves to work setting up the new panel with the
new chief ALJ, and these type of resources and these
cautions that you raise will be a part of what we want
to avoid. We've stayed away from the micromanaging
because there's no end to it.
REPRESENTATIVE GRUENBERG asked whether the bill contains a
provision to make all ALJs and hearing officers, not just those
on the central panel, nonexempt and, if not, should there be
such a provision in the bill.
MR. STANCLIFF replied:
The central panel protections are in place; we don't
extend the rules and the central panel protections
outside the central panel at this time. The hearing
officers that are operating and ... will continue to
operate in their jobs outside the central panel, in
most cases, are full "PX" employees and will remain
that way until they come into the jurisdiction and
become ALJs. And that's the way [the bill] is written
right now.
REPRESENTATIVE GRUENBERG asked about the possibility of
including a provision that requires the other agencies that use
ALJs and hearing officers to make a report to the legislature -
perhaps in six months, for example, or by the end of the next
legislative session - regarding whether they believe their
hearing officers and ALJs ought to be nonexempt. He opined that
the policy should be to free hearing officers and ALJs from
political considerations; the burden should be on an agency to
[prove] that someone should be politically appointed.
MR. STANCLIFF replied:
That has been thought of and taken care of under the
duties and responsibilities of the chief [ALJ]; they
are to gather ... exactly that type of information
from not only their own house but also ... [from other
agencies] and to bring to you, the legislative policy
makers, their recommendations, and I'm sure this is
going to be one of them. ...
REPRESENTATIVE GRUENBERG asked about centralized training and
qualifications for ALJs and hearing officers that are not on the
central panel.
MR. STANCLIFF said that the bill requires [the central panel] to
provide cross training, resource materials, and to work with all
ALJs and hearing officers, whether part of the central panel or
not, to help them "come up to speed."
Number 0660
REPRESENTATIVE ANDERSON moved to report the proposed House
committee substitute (HCS) for SB 203, Version 23-LS0903\J,
Cook, 3/17/04, as amended, out of committee with individual
recommendations and the accompanying fiscal notes. There being
no objection, HCS CSSB 203(JUD) was reported from the House
Judiciary Standing Committee.
The committee took an at-ease from 3:45 p.m. to 4:10 p.m.
HB 447 - 2004 REVISORS BILL
Number 0598
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 447, "An Act making corrective amendments to the
Alaska Statutes as recommended by the revisor of statutes; and
providing for an effective date." [Before the committee was
CSHB 447(STA).]
Number 0585
PAM FINLEY, Revisor of Statutes, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, noted that in members' packets is a sectional analysis
of HB 447 and two amendments. The bill, in general, is a
cleanup bill, she remarked, that to the best of her knowledge
has no policy changes in it - it merely makes conforming changes
to statutes that have been amended. Of the two amendments, the
first one, which comes at the request of the attorney general,
cleans up statutes in light of Carlson v. C.F.E.C., 65 P.3d 851
(Alaska 2003)(Carlson III), which pertains to fishing fee
differentials; in its decision, the Alaska Supreme Court has
determined which part of current statute is valid and which part
is not. She added that because the current statute became law
at the request of the executive branch specifically for the
Carlson case, "it makes sense to me to clean it up as they have
requested." The second amendment, she relayed, merely alters
one subsection that was missed "when we went from spousal
equivalents to domestic partners."
Number 0447
CHAIR McGUIRE made a motion to adopt Amendment 1, labeled 23-
LS1377\I.1, Finley, 3/11/04, which read:
Page 7, line 27, through page 8, line 9:
Delete all material and insert:
Insert
"(C) [GENERAL GOVERNMENT EXPENDITURES FOR
GOVERNMENT SERVICES THAT ARE USED BY A PORTION OF THE
POPULATION ATTRIBUTABLE TO THE PRESENCE OF THE
COMMERCIAL FISHING INDUSTRY, INCLUDING GOVERNMENT
SERVICES PROVIDED BY THE DEPARTMENT OF ADMINISTRATION,
DEPARTMENT OF CORRECTIONS, DEPARTMENT OF EDUCATION AND
EARLY DEVELOPMENT, DEPARTMENT OF HEALTH AND SOCIAL
SERVICES, DEPARTMENT OF MILITARY AND VETERANS'
AFFAIRS, AND DEPARTMENT OF TRANSPORTATION AND PUBLIC
FACILITIES;
(D)] capital costs directly supporting
[EXPENDITURES TO SUPPORT] the commercial fishing
industry [AS MEASURED BY ANNUAL DEPRECIATION OF PUBLIC
FACILITIES AND INFRASTRUCTURE]; and
(D) [(E)] expenditures to subsidize the
construction and operation of salmon hatcheries [; AND
(3) THE AMOUNT OF REVENUE FOREGONE BY THE
STATE DUE TO THE CURRENT MANAGEMENT SYSTEM FOR
COMMERCIAL FISHERIES IN THE STATE]."
REPRESENTATIVE GARA objected for the purpose of discussion. He
asked why the change proposed via Amendment 1 should be made to
the revisor's bill.
MS. FINLEY relayed that Section 11 of CSHB 447(STA) amends items
that were missed in executive orders, and that AS 16.43.160(e)
is an explanation of all the aspects of state government that
could justify fee differentials between resident and non
resident fishing licenses and entry permits. When subsection
(e) was passed - at the time, the Carlson case was still ongoing
- it was done so at the request of the executive branch, which
wanted legislative support of its position as to what would
constitute a legitimate basis for fee differentials between
resident and nonresident. The Alaska Supreme Court looked at
all of those items, said yes to some of the items and no to
others, and decided what changes needed to be made.
MS. FINLEY said that Amendment 1 reflects the Alaska Supreme
Court's decision, that being that what is listed in the current
subparagraph (C) - which relates to general government
expenditures - is not specific enough; that the language in
current subparagraph (D), "expenditures to support ... as
measured by annual depreciation of public facilities and
infrastructure" is not acceptable, though "capital costs
directly supporting the commercial fishing industry" is an
acceptable basis for a fee differential; and that the language
in current paragraph (3), regarding the amount of revenue
forgone by the state, was also unacceptable.
Number 0277
REPRESENTATIVE GARA opined that these appear to be substantive
changes that are properly the subjects of bills rather than a
revisor's bill.
MS. FINLEY remarked:
That's one reason why I don't usually clean up
statutes, because I figure the legislature might want
to clean them up in [a] different way. In this
particular case, the bracketed language ... could
still be there [but] it can't be effective because the
court has said it can't be effective, that ... it
would not be constitutional to use those as bases. So
in terms of substantive effect, there ... should be no
substantive effect. We could leave the language in
and it still wouldn't matter. So the only reason for
taking it out is so that people that read the statute
- but not the case notes - understand what is
acceptable and what isn't.
MS. FINLEY, in response to further questions, said that Carlson
III was decided almost a year ago, and the Alaska Supreme Court
"reversed and remanded on the issue of the hatcheries loan fund
subsidy and they partially remand on the issue of capital costs
for findings." Beyond that, she relayed, she is not familiar
with the status of "that remand."
CHAIR McGUIRE said she could think of a lot of statutes,
particularly in the area of abortion and parental consent, that
have been "repeatedly shot down" but are still in existence. "I
could imagine the [House] floor fight on a revisor's bill if we
were to do a similar type of exercise on them," she added.
MS. FINLEY said she would be happy to withdraw Amendment 1;
she'd merely felt the need to offer it because it came at the
request of the attorney general and it was a reasonable request.
"That's why I do not usually try to clean up the statutes to
make them fit the court, because sometimes the legislature has
different ideas about what they want to do," she relayed, adding
that if the committee is uncomfortable with Amendment 1, she is
fine with not adopting it.
REPRESENTATIVE GRUENBERG said he would like to have the statutes
be constitutional, suggested that the committee should adopt
Amendment 1, and pointed out that if anyone objects to this
change, Amendment 1 could be removed on the House floor or by
the Senate.
TAPE 04-40, SIDE A
Number 0001
CHAIR McGUIRE said her concern revolves around whether the
Carlson case is still going through the process and whether
Amendment 1 would be codifying what the court has said now but
which could change later. She indicated that she did not have a
problem with adopting Amendment 1.
REPRESENTATIVE GARA asked Ms. Finley whether she feels that what
is being done via Amendment 1 is a proper subject for a
revisor's bill.
MS. FINLEY said she doesn't think that Amendment 1 makes a
substantive change because the language it is deleting isn't
applicable due to the court ruling. Amendment 1 is cleaning up
a statute to match a court decision, though such a change would
not usually be included in a revisor's bill because most
statutes are passed by the legislature because the legislature
wanted a change. The statute being altered by Amendment 1,
however, came at the request of the executive branch. In
conclusion, she remarked that Amendment 1 is properly the
subject of a revisor's bill, though, again, she would not have
suggested it and doesn't feel any need to push the issue.
Number 0203
REPRESENTATIVE GARA removed his objection.
Number 0214
CHAIR McGUIRE asked whether there were any further objections to
Amendment 1. There being none, Amendment 1 was adopted.
Number 0224
CHAIR McGUIRE made a motion to adopt Amendment 2, labeled 23-
LS1377\I.2, Finley, 3/11/04, which read:
Page 12, following line 3:
Insert a new bill section to read:
"* Sec. 24. AS 39.50.030(g) is amended to read:
(g) The requirements in this section for
disclosures related to a person's domestic partner
[SPOUSAL EQUIVALENT] do not apply to an elected or
appointed municipal officer."
Renumber the following bill sections accordingly.
Page 18, line 3:
Delete "sec. 38"
Insert "sec. 39"
Page 19, line 3:
Delete "sec. 38"
Insert "sec. 39"
Page 19, lines 22, 24, 25, 26, 28, 29, and 31:
Delete "sec. 25"
Insert "sec. 26"
Page 20, line 1:
Delete "sec. 25"
Insert "sec. 26"
Page 20, line 5:
Delete "SECTION 25. Section 25"
Insert "SECTION 26. Section 26"
Page 20, line 8:
Delete "sec. 41"
Insert "sec. 42"
Page 20, line 13:
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CHAIR McGUIRE asked whether there were any objections to
Amendment 2. There being none, Amendment 2 was adopted.
Number 0290
REPRESENTATIVE GRUENBERG noted that many years ago, the
legislature used to receive a pamphlet detailing "court
decisions, administrative decisions, regulations, and
potentially statutes that may need amendment or change." He
indicated that he would like to get the pamphlets from the last
few years and then relay to the committee any suggestions for
changes.
MS. FINLEY mentioned that those pamphlets are produced by
Legislative Legal and Research Services.
CHAIR McGUIRE indicated that she did not have a problem with
Representative Gruenberg following up on that issue.
Number 0548
REPRESENTATIVE ANDERSON moved to report CSHB 447(STA), as
amended, out of committee with individual recommendations and
the accompanying zero fiscal note. There being no objection,
CSHB 447(JUD) was reported from the House Judiciary Standing
Committee.
HB 428 - CIVIL PENALTY: UNDERAGE ALCOHOL PURCHASES
Number 0579
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 428, "An Act relating to civil liability for
acts related to obtaining alcohol for persons under 21 years of
age or for persons under 21 years of age being on licensed
premises."
Number 0629
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor,
indicated that the concept behind HB 428 offers a good example
of the community working together to aid law enforcement in
enforcing "our alcohol laws." House Bill 428 allows businesses
to file a civil action against minors who try to buy alcohol and
against adults who buy alcohol for minors. The penalty provided
for in HB 428 is $1,000. He noted that what is being proposed
in HB 428 is already occurring in Anchorage under a local
ordinance; Brown Jug, Inc. ("Brown Jug"), and Chilkoot Charlie's
have been making use of this Anchorage ordinance, and this has
sparked interest in other parts of the state. He relayed that
Brown Jug is willing to waive $700 of the $1,000 penalty if the
person agrees to attend alcohol education programs.
REPRESENTATIVE MEYER offered his understanding that almost all
of the people that have been given the option of paying $1,000
or paying $300 and attending the programs opt for attending the
programs and paying the lesser amount. He characterized this as
a win-win situation; "it's a win for the community, it's a win
for the person who was caught buying for the minor and the minor
who tried to buy." Alcohol is the drug of choice amongst
Alaska's youth, he remarked, adding that he highly endorses the
program encompassed in HB 428 and is proud to bring the
legislation forward because it will help deter both minors and
adults.
CHAIR McGUIRE said she liked the alcohol education option being
offered by Brown Jug, surmising that those who've just turned 21
may not realize the seriousness of buying alcohol for minors.
REPRESENTATIVE MEYER said that according to his understanding,
there are situations involving teenage girls who unknowingly ask
sexual predators to buy them alcohol, and this is why the
organization Standing Together Against Rape (STAR) has gotten
involved in the training aspect currently taking place in
Anchorage.
Number 0950
BRENDA SADLER, President, Fairbanks Chapter, Mothers Against
Drunk Driving (MADD), said that alcohol consumption by minors
continues to be a challenge to the health, safety, and wellbeing
of the Fairbanks community. On behalf of the Fairbanks chapter
of MADD, she asked [the committee] to support the changes
encompassed in HB 428 as a proactive way to halt the purchase of
alcoholic beverages for minors. "Please remember ... [that]
minors, too, may be behind the wheel when a loved one or [a]
friend of yours or mine becomes the victim of a drunk driver,"
she said in conclusion.
Number 1012
CINDY CASHEN, Executive Director, Juneau Chapter, Mothers
Against Drunk Driving (MADD), noted that she would be speaking
on behalf of the Juneau and Anchorage chapters of MADD. She
said:
We support House Bill 428, as we feel it will assist
in the prevention of underage drinking.
Representative Meyer's bill will provide a tool to
Alaska liquor licensees, and empower responsible
businesses to participate in community policing. Last
year there was a youth risk behavior survey - YRBS -
that came out, and 42 schools from 19 districts
[participated] in it, and there 2,175 completed
questionnaires, grades 9 through 12. And according to
the YRBS, ... 38.7 percent of teenagers who completed
the survey claimed that they had had at least one
drink in the 30 days prior. Over 26 percent claimed
that they had consumed five or more drinks within a
couple of hours in the 30 days prior to the survey.
In comparison, when you compare it to Alaska Adults -
of 29.9 percent - that percentage is not that far away
from the adults, so the youth are catching up to the
adults as far as binge drinking. This [YRBS] showed
that Alaska high school students had their first drink
of alcohol before the age of 13 - ... 23.2 percent.
That is a decrease from 36.7 percent in 1995, so
education is having some effect, however, the binge
drinking has not changed. This bill would change that
because it would [deter] kids who would otherwise try
to get someone to buy alcohol for them and it would
[deter] those who might consider purchasing alcohol
for our teens.
Number 1133
LOGAN SPENCER, Youth in Action (YIA), Mothers Against Drunk
Driving (MADD), said that YIA is opposed to teen lifestyles that
feature alcohol outside of its legal uses, and believes that any
legislation that can help prevent underage purchasing or
drinking is good legislation. He urged the committee to pass HB
428 to keep minors safer and empower businesses to police minor
alcohol-consumption. In response to questions he said that
although underage drinking is becoming less "cool," it is still
looked upon as "normal" behavior, particularly for high-school-
age kids. He remarked that education programs are effective,
but lots of kids like to drink simply because doing so is
"against the rules." He opined that HB 428 will be effective
because one thing that teenagers don't want to lose is their
financial freedom, whereas they sometimes simply look at their
minor consuming convictions as "badges of honor."
Number 1308
O.C. MADDEN III, Brown Jug, Inc., said that he'd approached
Anchorage Assembly member, Anna Fairclough, to get the Anchorage
ordinance passed. After its enactment, he said that his
organization was able to get together with Akeela, Inc.
("Akeela"), and STAR to create "this diversion program." He
went on to say:
By using the civil penalty, we're able to take action
against the minors and adults involved, and then use
that as leverage to get them involved in some
treatment programs. One of the things that's really
exciting about this is that we've got almost 100
percent response rate from the kids that we've
approached with this diversion program. And ... the
way it works is, they pay $300 - which goes to ...
offset administrative costs and to pay a bonus to the
employee - then we will waive $700 [of] the civil
penalty, and the minors and the adults involved are
required to go through some classes with Akeela - a
16-hour class with them, a (indisc.) - go through a
victim impact panel with MADD, and then a class with
[STAR]. And we've found this very effective.
Number 1428
Over the last couple of years we've made close to 120
arrests of adults purchasing alcohol for minors and
minors soliciting adults to buy. I'd say we've been
able to identify three primary groups of people that
buy alcohol for minors. The first group is the friend
or older relative ... of the minor, the second group
is public inebriates, and the third group is sex
offenders. We have caught a number of kids who
approach public inebriates to buy alcohol for them;
they'll go find the guy standing on the corner with
the "will work for food" sign. And in many cases,
these kids have no idea who it is or the criminal
history of the person that they're dealing with. It's
a very dangerous situation for the kid. And for those
reasons (indisc. - paper rustling) education component
was very, very important, and we're seeing a great
deal of success (indisc.) virtually all the kids are
signing up and about 40 percent of the adults, so far,
that we've approached have signed up.
MR. MADDEN, in response to a question, noted that his
organization does have difficulty contacting public inebriates
and so is not having any success collecting the penalty from
them, but is having success with the adults it is able to get in
contact with. In response to further questions, he relayed that
one suggestion he's made is to mandate that licensees seize IDs
when they know they are fake ID's or when they know that the
person attempting to buy alcohol is underage. He pointed out
that as long as an ID is not seized for personal use, the
seizure of an ID does not expose a licensee, or an employee of a
licensee, to liability. He elaborated, "It's legal for us to
hold evidence that a crime has been committed in order to turn
it over to a law enforcement agency." He relayed that his
organization has seized close to 1,000 IDs in the last six
years, and these IDs have been turned over to the Alcoholic
Beverage Control Board ("ABC Board"); there have no problems
with anyone trying to sue Brown Jug for seizing the IDs.
Number 1596
DALE FOX, Executive Director, Cabaret Hotel Restaurant &
Retailers Association (CHARR), relayed that "the CHARR group"
unanimously supports HB 428, which CHARR believes will deter
illegal drinking by underage individuals, and which is exactly
what responsible liquor license holders want. In response to a
question, he said that CHARR is in favor of people following the
law, which currently states that the drinking age is 21.
CHAIR McGUIRE posited that this age limitation is intended to
not only prevent people from purchasing alcohol before they are
21 but also to prevent them from being exposed to alcohol while
they're under 21.
REPRESENTATIVE GARA said he has no problem with the $1,000
penalty, but noted that only one company is actually assisting
people with getting past their alcohol problems. He asked
whether all members of CHARR have been surveyed to find out
whether any of them will be willing put monies received from
these civil actions towards alcohol education programs.
MR. FOX indicated that there has been no such survey. He went
on to say:
But what we have talked about is some guiding
principles; the guiding principle of being responsible
for your actions is one of the principles that the
CHARR board has discussed. And the trend in society
for everybody else to be responsible for what you do
is one that we don't accept. And this assessment of
penalties against the perpetrators - either the ...
people that are buying for young people or young
people that are trying to take fake IDs and go into a
place - puts the responsibility, that is shared by the
license holder because there are serious penalties if
we sell alcohol to people, puts the penalties where
they belong and personal responsibility where it
belongs. So this is a vehicle to make that happen.
But in terms of what will the 1,800 license holders
across the state do with this, I don't know.
REPRESENTATIVE GARA asked Mr. Fox whether it is important to him
that liquor establishments receive the money, or could the money
just be remitted to local municipalities or to the state.
Number 1712
MR. FOX said that because the asset that is at risk if a minor
buys alcohol is the business license, it seems reasonable that
business owners should be rewarded for strengthening their
procedures pertaining to catching minors and the adults that buy
for them. He mentioned that the CHARR board has not discussed
in any detail whether it would matter if HB 428 is amended to
have the money go to local municipalities; the CHARR board does
not yet have a position on such a change.
MR. MADDEN relayed that one of the arrests that was made last
year involved a young man buying alcohol for a carload of
minors, and although written confessions were obtained from
everyone at the time, they ultimately decided to fight the
charge. As a result, Brown Jug ended up going to trial, the
trial lasted two days, tying up the resources of the state for
two days, and the young man ended up paying only $100 fine.
That case prompted Brown Jug to approach Ms. Fairclough with the
concept that later became the Anchorage ordinance. And although
the state has the ability to fine someone up to $5,000 for the
crime of buying alcohol for minors, he remarked, he has never
seen it done, and opined that outside of the civil penalty,
nothing was happening with regard to penalizing people who
bought alcohol for minors.
MR. MADDEN, in response to a question, offered his belief that a
parent cannot be held liable for giving alcohol to his/her
child, nor would the parent be liable if his/her child then gave
that alcohol to other minors. He said that HB 428 primarily
addresses three situations: a minor that solicits an adult to
buy alcohol for the minor, an adult that orders or receives
alcohol from a licensee for the purpose of giving it to a minor,
or "someone who misrepresents the age of someone in order to
provide alcohol to them."
REPRESENTATIVE GARA noted that currently under Alaska law, 50
percent of punitive damages recovered is supposed to be remitted
to the state. He offered his belief that HB 428 ought to be
altered to say that if a licensee recovers the $1,000 penalty,
then the licensee should be obligated to remit 50 percent of
that money to the state. "I'm sitting here ... wondering why we
would impose this fine and give it all to a liquor
establishment, and I can see in the bill that ... it would be
your effort to ... prosecute the civil action, but would you
have any problem remitting half of the money to the state?" he
asked.
MR. MADDEN said that such a provision would defeat the purpose
of the legislation. He offered his belief that the state
currently has the ability collect any fine it feels is
necessary. "Our basic goal here is to create an incentive for
licensees to actually take these steps, and the more that you
restrict that incentive, the less likely some people will be to
participate; I don't know that that's a positive step," he
remarked.
Number 2001
REPRESENTATIVE GARA pointed out that the state can only collect
a fine if it goes through all the hoops of a criminal
prosecution. The process proposed by the bill involves a very
easy civil case, and the state doesn't have the right,
currently, to get a simple $1,000 civil fine. He said that
because CHARR has not yet spoken to its membership about what
licensees will do with the money, he feels that the legislature
would be issuing a blank check in a very odd way. "I can't
think of another law ... where we would transfer fine money to a
liquor establishment," he concluded.
MR. MADDEN relayed that AS 04.16.049 does so, in that a minor
who illegally enters a licensed premises is liable for a civil
penalty of $1,000 to the licensee. He said he'd originally
drafted that language for an Anchorage ordinance back in 1998,
and Representative Meyer used that language in legislation that
became law in 2001. It's an extremely effective tactic for
dealing with underage drinking, he remarked, mainly because it
is a form of zero-cost law enforcement in that it allows a
licensee to pay substantial bonuses to employees who are in turn
motivated to learn all they can about how to stop underage
drinking in the establishments where they work. Under AS
04.16.049, the only one who is penalized is the person who
deliberately breaks the law. "You couldn't ask for a better
mechanism to be set in place," he opined.
REPRESENTATIVE GARA asked Mr. Fox what CHARR's membership does
with the fines its licensees pursue via AS 04.16.049.
MR. FOX said he did not know, and pointed out that CHARR members
represent only about 360 of Alaska's 1,800 licensees.
Number 2096
REPRESENTATIVE SAMUELS indicated that he agrees that requiring
50 percent of the penalty to go to the state would defeat the
purpose of the legislation. He asked whether the civil actions
under the Anchorage ordinance are being pursued separately,
without the knowledge of law enforcement or the criminal justice
system.
MR. MADDEN said that with regard to fake ID cases, Brown Jug's
employees are not authorized to detain the kids with the fake
ID's; instead, the employees are trained how to collect
information that will allow the company to take action at a
later date. In cases where a person is attempting to buy
alcohol for minors, security staff that have been highly trained
are detaining those individuals until their identity is
established and in some cases law enforcement is called in.
REPRESENTATIVE SAMUELS surmised, then, that civil actions
pertaining to fake IDs are pursued without any criminal
proceedings taking place.
MR. MADDEN confirmed this.
REPRESENTATIVE SAMUELS said that this seems unusual in that the
damaged party is the state of Alaska, not the licensee, but it
is the licensee that gets to collect the money via civil action.
He remarked that he agrees with the bill, however.
REPRESENTATIVE GRUENBERG opined that HB 428 is strangely drafted
because "there are misplaced modifiers and stuff." He suggested
that HB 428 ought to be redrafted to fit the proper legal form
of statutes. For example, statutes do not normally use the
term, "condition precedent", which is currently located on [page
1, line 13, and page 2, lines 3-4]. Also, the term "by first
class mail" ought to be placed in a different location, he
remarked, and pointed out that attorney fees are not generally
spoken of as a liability, but the language on page 2, lines 8-
10, does so. He also indicated that the term, "emancipated
minor" should be defined using standard statutory language
rather than how it is currently defined in the bill.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 428.
CHAIR McGUIRE surmised that the bill simply contains the wording
of the Anchorage ordinance. She indicated a preference for
having the bill redrafted using statutory drafting guidelines.
Number 2300
SUZANNE CUNNINGHAM, Staff to Representative Kevin Meyer, Alaska
State Legislature, sponsor, relayed that the language in
subsection (f) regarding the definition of "emancipated minor"
was not a part of the Anchorage ordinance and instead came from
the drafter. She agreed to have the drafter review the bill.
REPRESENTATIVE GARA remarked that "this" is not that different
from something that occurs under federal law: where a
government interest has been violated, in some circumstances
private people are allowed to bring a suit on behalf of the
government and are allowed to keep some of the fine money, but
they have to remit a certain portion back to the government.
That seems to be what's going on here, he opined, noting that
somebody is being rewarded for bringing the action; however, he
remarked, he would be a lot more comfortable if the fine is
split between the licensee and the state. He said he is
considering offering a conceptual amendment to that effect. He
asked the sponsor to comment.
REPRESENTATIVE MEYER indicated that he has concerns about such a
change, and opined that the companies that are most vigorously
pursuing these civil actions are only keeping $300 of the
penalty and waiving the remaining $700. He said he is afraid
that such a change would defeat the goal of providing an
incentive to licensees.
TAPE 04-40, SIDE B
Number 2380
MR. MADDEN, in response to a question, offered his belief that
only a few establishments are making use of the Anchorage
ordinance.
MS. CUNNINGHAM relayed that Mr. Madden travels throughout the
state providing training to licensees and their employees
regarding how to detect fake IDs and how to detect when someone
is purchasing alcohol for minors. She explained that [other
areas of the state] want to utilize a program similar to the one
in Anchorage. She opined that these businesses are being rather
generous by keeping only $300 of the $1,000 fine to cover
administrative costs.
REPRESENTATIVE MEYER remarked that the bill currently provides
the flexibility to reward the doorman or clerk to take the
license. Therefore, he expressed the need to leave all the
tools in place.
REPRESENTATIVE GARA announced that he is going to vote to pass
this legislation out of committee. However, he pointed out that
there are a lot of people who perform community work like this
for free. He indicated some discomfort with the notion that an
industry that makes money in an area that involves some of these
ills should be paid. When one enters the business of selling
alcohol, which can be quite profitable, one knows there are good
and bad impacts on society. He said he was glad that these
educational efforts are being undertaken, but again he
highlighted that many volunteer such efforts.
REPRESENTATIVE GRUENBERG turned attention to subsection (d), and
asked if there is a reason why claims shouldn't be assigned. He
explained that he could see that a larger organization such as
Brown Jug could do this [program] while a smaller organization
wouldn't have the expertise or wherewithal to do it. Therefore,
Representative Gruenberg suggested that it might be more
efficient to assign the claims, perhaps to a law firm.
MR. MADDEN relayed that the language in HB 428 mirrors the
shoplifting statute, which allows a retailer to take civil
action in a criminal matter against a shoplifter. However, he
said he didn't know of a reason why [assigning a claim] would be
a problem.
Number 2182
REPRESENTATIVE GRUENBERG moved that the committee adopt
Amendment 1, to delete subsection (d), from page 2, line 7.
There being no objection, Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG commented that there is a technical
problem on page 2, line 10, which only allows attorney fees
under Rule 82 of the Alaska Rules of Civil Procedure, but not
costs under Rule 79 of the Alaska Rules of Civil Procedure.
Furthermore, he suggested that there not be a subsection (e) and
[that language pertaining to the Alaska Rules of Civil
Procedure] be placed on line 8 and line 11.
Number 2140
REPRESENTATIVE GRUENBERG moved Conceptual Amendment 2, which
would insert the following language: "plus costs and [attorney]
fees as permitted by the Alaska Civil Rules" and would delete
subsection (e) [on page 2, line 10]. There being no objection,
Conceptual Amendment 2 was adopted.
REPRESENTATIVE MEYER, noting that he relies on Mr. Madden's
expertise, inquired as to Mr. Madden's thoughts on the previous
amendments, specifically Amendment 1.
MR. MADDEN indicated that the amendments are fine.
CHAIR McGUIRE noted that Brown Jug offers an alcohol awareness
program and if an individual attends it, the fine is reduced.
She asked if the language in HB 428 requires that.
REPRESENTATIVE MEYER commented that it's only a policy of Brown
Jug. This legislation is written such that an establishment
could keep the entire amount of the fine if it so desired.
Furthermore, the fine could be given to the employees as an
incentive to catch the minors, or could be kept to pay for
administrative costs. Representative Meyer opined that most
businesses will follow the lead of Brown Jug. Furthermore, he
said he believes that MADD, STAR, and Akeela, who provide the
education programs, will try to encourage waiving some of the
fine in order to place these individuals in the educational
programs. He offered his belief that CHARR wants the
aforementioned as well.
CHAIR McGUIRE turned attention to subsection(a).
Number 2002
MR. MADDEN explained that when someone is caught, the individual
receives a demand letter specifying that the fine is $1,000.
Included in that letter is information regarding the diversion
program [option that would reduce the fine], and specifies that
the individual has to take advantage of the diversion program
option before Brown Jug files suit. The legislation doesn't
prohibit offering the diversion program, which he referred to as
a free small claims offer. He added that the offenders are
signing up for the diversion program because they don't want to
go to court.
CHAIR McGUIRE asked if Mr. Madden would be comfortable with
adding a provision to the legislation specifying that an alcohol
awareness program must be offered to offset this criminal
penalty.
MR. MADDEN answered that he would have an issue with that
because if the offenders know that they have to enroll in an
alcohol awareness program, there is no incentive. He reiterated
that for many offenders, the only reason they enroll in the
class is because it's a lot less onerous than the entire
process. The $1,000 provides significant leverage to get these
offenders to enroll in the diversion program, which is currently
a simple matter of the offender enrolling in the program at
which point it's turned over to Akeela.
CHAIR McGUIRE clarified that she meant adding language
specifying that the licensee must offer an alcohol awareness
program to offset the fine. The offenders could still accept or
deny attending the program, and therefore she didn't see how Mr.
Madden's program would change, since the $1,000 fine would
remain the "hammer." Chair McGuire expressed concern that there
will be more licensees that simply choose to keep the $1,000
rather than offer the alcohol awareness classes, which she
characterized as the best part of the legislation.
The committee took an at-ease from 5:20 p.m. to 5:21 p.m.
Number 1829
MR. MADDEN offered his understanding that the demand letter
would have to include an offer for an alcohol treatment program,
the cost of which would be borne entirely by the offender.
CHAIR McGUIRE agreed that that is what she is suggesting. In
response to Mr. Madden, Chair McGuire clarified that she would
refer to the program as an alcohol awareness program.
REPRESENTATIVE GARA interjected to say that the language should
refer to education or treatment.
MR. MADDEN asked if a flyer from an alcohol awareness program
would meet the requirements.
CHAIR McGUIRE answered that such wouldn't be the intent.
MR. MADDEN commented that he wouldn't want to do anything that
would dissuade a licensee from performing enforcement on this
level. Mr. Madden opined that [promoting] being aggressive in
preventing alcohol from landing in underage hands is in the best
interest of the state and everyone involved, even if the
licensee keeps the fine. Mr. Madden highlighted that under the
law, it isn't illegal in Alaska to sell alcohol to an adult with
a minor in his or her vehicle. Therefore, he reiterated that he
wouldn't want to do anything that would take away the incentive
to be extra aggressive and vigilant in these situations.
Number 1749
CHAIR McGUIRE said that she didn't disagree. She posed a
situation, however, in which a 21 year old doesn't realize the
seriousness of [purchasing alcohol for a minor]. Under the
current legislation, if the 21 year old purchased alcohol for a
minor at the Brown Jug, the 21 year old would receive the
benefit of a treatment course that could change his or her life.
However, if the situation happened at a store that didn't offer
a treatment course, the individual would merely pay $1,000 and
it may not change his or her life. Chair McGuire said that
although she didn't want to do anything that would discourage
[enforcement], she felt that perhaps education would help
alleviate the ultimate problem.
MS. CASHEN stated that MADD supports getting people into
treatment. However, it's extremely difficult to get the Juneau
licensees to take advantage of the $1,000 civil fine for minors
attempting to enter, which she predicted will be the same
situation with this. The $1,000 civil fine is an incentive.
She opined that for many liquor licensees, "this is what will do
it." This legislation isn't treatment legislation, rather it
encourages the employees to [be aggressive with enforcement] and
deter those who want to purchase alcohol. Furthermore, Ms.
Cashen pointed out that many communities don't have alcohol
schools.
REPRESENTATIVE GRUENBERG pointed out that subsection (a) deals
with the adult who purchases alcohol [for a minor] and
subsection (b) deals with the parent of the minor who solicits
another person to purchase alcohol. However, the legislation
doesn't seem to address the minor.
MS. CUNNINGHAM informed the committee that minors don't have the
capacity to be sued or have judgments brought against them in a
court. Furthermore, Legislative Legal and Research Services
staff specified that the Anchorage ordinance was based on the
shoplifting statutes, which the drafter looked to [when drafting
HB 428].
REPRESENTATIVE GRUENBERG highlighted that there are two groups
of people involved. There are people who are 18-21 years of age
who are adults. There is no reason that those who are 18-21
years old could not face the penalty. However, for those under
18 years of age, Representative Gruenberg said he wasn't aware
of anything in law that specifies individuals of that age can't
have a civil penalty assessed against them. Therefore, he
expressed the need for legal counsel to check into that.
CHAIR McGUIRE indicated that the statute includes solicitation.
She explained that [subsection (a)] specifies that if one
attains the age of 18, that 18-year-old can be liable for a
civil action of $1,000 if he/she violates any part of AS
04.16.060, which includes a variety of things. The group that
doesn't end up paying are those [offenders] who are [under the
age of 18].
Number 1419
REPRESENTATIVE GRUENBERG proposed Conceptual Amendment 3, which
he specified would on page 1, line 6, to delete "who has
attained 18 years of age, or an emancipated minor,". However,
he said he wasn't sure how that would be drafted.
REPRESENTATIVE MEYER reiterated earlier testimony that civil
action can't be taken against a minor under the age of 18.
REPRESENTATIVE GRUENBERG posed a situation in which a [minor]
driving a car hits another car. He offered his belief that a
judgment against that [minor] could be obtained. Although one
may or may not be able to collect, if a judgment can be
obtained, then a penalty can be assessed against the minor.
MS. CUNNINGHAM noted that the drafter had directed her to Rule
17(c) of the Alaska Rules of Civil Procedure.
REPRESENTATIVE GRUENBERG interjected to say that Civil Rule
17(c) has to do with the appointment of a guardian ad litem,
which he said has nothing to do with this. In response to Ms.
Cunningham, Representative Gruenberg specified that a guardian
ad litem doesn't have to be appointed when a minor is sued. He
highlighted that Civil Rule 17(c) uses "may" language, and
explained that normally if [a minor] is sued, it's done through
a next friend. He reiterated that he wasn't aware of any reason
in law why a civil penalty can't be assessed against a minor.
REPRESENTATIVE GARA commended Brown Jug and Chilkoot Charlie's
for what they are doing in this area. However, he said he would
be more interested in the legislation if he could hear from
CHARR regarding what its other members would do with [the fines
collected]. He explained that it would be comforting to know
that other members of CHARR would follow the lead of Chilkoot
Charlie's and the Brown Jug.
MR. MADDEN offered that he believes that as written the
legislation would encourage people to take action when they
otherwise might not.
REPRESENTATIVE MEYER agreed with Ms. Cashen that even if the
licensees are doing this merely out of greed, it's a good thing
if it stops the alcohol from getting to minors He then reminded
the committee of prior legislation dealing with liability for
[minors] who vandalized schools. He recalled asking the
attorneys in Legislative Legal and Research Services why the
[offending minors] couldn't be held responsible for civil
penalties. The response was that minors under age 18 couldn't
be held responsible unless one goes through criminal court where
a judgment could be obtained and the minor held financial
liable. Representative Meyer said he isn't sure whether that's
what Representative Gruenberg is discussing.
Number 1155
CHAIR McGUIRE announced that HB 428 would be held over [with
Conceptual Amendment 3 pending].
ADJOURNMENT
Number 1145
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:35 p.m.
[For the presentation by Juan Melendez, former death row inmate,
see the 1:15 p.m. minutes for this date.]
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