Legislature(2021 - 2022)GRUENBERG 120
04/06/2022 01:00 PM House JUDICIARY
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| HB399 | |
| Presentation: Uniform Law Commission | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| *+ | HB 399 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 6, 2022
1:18 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Liz Snyder, Vice Chair
Representative Harriet Drummond
Representative Jonathan Kreiss-Tomkins
MEMBERS ABSENT
Representative David Eastman
Representative Christopher Kurka
Representative Sarah Vance
COMMITTEE CALENDAR
HOUSE BILL NO. 399
"An Act relating to misconduct involving confidential
information; relating to artifacts of the state; and relating to
penalties regarding artifacts or historic, prehistoric, or
archeological resources of the state."
- HEARD & HELD
PRESENTATION: UNIFORM LAW COMMISSION
- HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 399
SHORT TITLE: STATE HISTORICAL ARTIFACTS; CRIMES
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
03/14/22 (H) READ THE FIRST TIME - REFERRALS
03/14/22 (H) JUD, RES
04/01/22 (H) JUD AT 1:00 PM GRUENBERG 120
04/01/22 (H) -- MEETING CANCELED --
04/04/22 (H) JUD AT 1:00 PM GRUENBERG 120
04/04/22 (H) -- MEETING CANCELED --
04/06/22 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
JUDY BITTNER, Chief/State Historical Preservation Officer
Office of History and Archaeology
Division of Parks and Outdoor Recreation
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Presented HB 399, Version I, on behalf of
the sponsor, House Rules by request of the governor.
KACI SCHROEDER, Assistant Attorney General
Criminal Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Answered questions on HB 399, Version I.
REBECCA POLIZZOTTO, Chair
Alaska Delegation
Uniform Law Commission
Juneau, Alaska
POSITION STATEMENT: Introduced the Alaska Delegation members of
the Uniform Law Commission.
ANDY HEMENWAY, Member
Alaska Delegation
Uniform Law Commission
Juneau, Alaska
POSITION STATEMENT: Presented a PowerPoint, titled "An
Introduction to the Uniform Law Commission" and answered
questions.
DEBORAH BEHR, Member
Alaska Delegation
Uniform Law Commission
Juneau, Alaska
POSITION STATEMENT: Provided information on the Uniform Law
Commission and answered questions.
ACTION NARRATIVE
1:18:51 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 1:18 p.m. Representatives Claman, Snyder,
and Kreiss-Tomkins were present at the call to order.
Representative Drummond arrived as the meeting was in progress.
HB 399-STATE HISTORICAL ARTIFACTS; CRIMES
1:19:30 PM
CHAIR CLAMAN announced that the first order of business would be
HOUSE BILL NO. 399, "An Act relating to misconduct involving
confidential information; relating to artifacts of the state;
and relating to penalties regarding artifacts or historic,
prehistoric, or archeological resources of the state."
1:20:16 PM
JUDY BITTNER, Chief/State Historical Preservation Officer,
Office of History and Archaeology (OHA), Division of Parks and
Outdoor Recreation, Department of Natural Resources (DNR),
stated that OHA provides statewide historic preservation
programs to identify, document, study, evaluate, protect,
restore, and exhibit prehistoric, archaeological, and historic
sites and buildings. The office works under the state authority
of the Alaska Historic Preservation Act and the federal
authority of the National Historic Preservation Act. She
continued that OHA also serves as the State Historic
Preservation Office, which administers federal historic
preservation programs, represents the state's interest in
protecting heritage resources, and ensures federal agencies are
complying with laws and regulations.
1:21:22 PM
CHAIR CLAMAN requested a motion.
1:21:41 PM
VICE CHAIR SNYDER moved to adopt the proposed committee
substitute (CS) for HB 399, Version 32-GH2541\I, Bullard,
4/4/22, as a working document. There being no objection,
Version I was before the committee.
1:22:04 PM
MS. BITTNER, continuing the introduction, said that under the
National Historic Preservation Act, OHA reviews projects,
maintains a historic inventory of resources in Alaska, and
administers grants and programs. She said that under the Alaska
State Preservation Act, OHA staffs the Alaska Historical
Commission, issues permits for state lands, maintains an
inventory, assists designating sites and monuments, and serves
as the Geographic Names Board.
1:23:52 PM
MS. BITTNER explained that HB 399, [Version I], would enhance
protection of artifacts and archaeological sites by increasing
criminal penalties for violations of the Alaska Historic
Preservation Act.
CHAIR CLAMAN questioned whether adding [the stipulation of] a
mental state would create a new crime.
1:24:47 PM
MS. BITTNER stated that there are criminal penalties today, and
the proposed legislation would clarify the penalties by adding a
felony. She said the Department of Law (DOL) suggested that
adding a mental state would help with prosecution and
implementation of penalties concerning intentional acts, such as
stealing or vandalizing artifacts.
1:26:35 PM
CHAIR CLAMAN expressed the understanding that the crimes already
exist in statute under Title 41. He said that the proposed
legislation would add a mental state to the crimes. He
questioned Kaci Schroeder what the mental state would be without
the proposed legislation.
1:26:51 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Department of Law, stated that DOL would default to mental
states addressed in Title 11, which are "knowing" as to conduct
and "reckless" as to the circumstance. She stated that the
inclusion of a mental state in the proposed legislation would
clarify and assist practitioners. She expressed hope that the
clarification would reduce arguments, "because occasionally we
can argue about that stuff when it is outside of Title 11." She
stated this would be an attempt to make it clearer.
1:27:19 PM
CHAIR CLAMAN questioned whether there should be [a clarification
of] a mental state, as the standard already exists in the U.S.
Supreme Court and Alaska Supreme Court. He considered that even
if [the legislation] does not list a mental state, there would
have to be a mental state. He questioned whether the common law
argument about the mental state in the existing statute would
apply.
1:27:52 PM
MS. SCHROEDER, in response, expressed the opinion that DOL would
likely argue there was some sort of negligence, but DOL would
like to avoid arguments which could result in bad case law.
CHAIR CLAMAN suggested that DOL would argue the mental state is
negligence for the criminal conduct, and the defense would argue
there is a higher mental state. He expressed the understanding
between criminal negligence and ordinary negligence. He
questioned whether DOL would be arguing the lower mental state,
while the defense would be arguing something else.
MS. SCHROEDER responded that there is a possibility that a
prosecutor could argue a lower mental state. She said, "I will
tell you though, the way these ... crimes are drafted, it is
very hard to imagine something that is not intentional or
knowing. I think that would be a tough argument for us to win."
She explained that this is the reasoning for the inclusion [of a
mental state] in [Version I], to attempt to reduce this level of
argument, so DOL could focus on the prosecution.
MS. SCHROEDER, in response to a series of follow-up questions,
stated that these crimes are not prosecuted frequently. She
related that the record shows two referrals. In response to a
second question, she stated that in 2015 one case had been
referred, and the prosecution of this case is complete, while
the other referral has been more recent, and it is unclear if
there will be a prosecution. In response to a third question,
she specified the cases had been referred to DOL for
prosecution, not the federal government.
1:29:27 PM
CHAIR CLAMAN questioned whether fish and wildlife violations and
artifact cases would more often be in federal court than in
state court.
1:29:45 PM
MS. SCHROEDER responded that DOL frequently prosecutes fish and
game [violations], but she expressed uncertainty concerning the
number of cases which have been referred to the federal
government. She stated that DOL retains a prosecutor who
focuses on these crimes, so they are prosecuted with some
frequency [in state court].
CHAIR CLAMAN questioned whether most fish and game violations
concern how the hunting took place and the manner [the animal]
was taken, as opposed to Lacey Act violations on the federal
level, which points to the species taken.
MS. SCHROEDER responded in the affirmative.
1:30:25 PM
CHAIR CLAMAN questioned the distinguishing feature in the
proposed legislation which would "bump" the level up from a
misdemeanor to a felony.
MS. SCHROEDER responded that [Version I] is currently drafted so
Section 1 would be a misdemeanor and Section 2 would be a
felony. In response to a follow-up question, she laid out that
the distinguishing conduct in Section 1 would be excavating,
removing, or destroying the artifact, and in Section 2 it would
be transporting, buying, selling, or possessing the artifact.
1:31:13 PM
REPRESENTATIVE DRUMMOND, per the Alaska Historic Preservation
Act, questioned Ms. Bittner whether artifacts in their natural
settings and artifacts in museums are both included in the
preservation of resources.
1:32:01 PM
MS. BITTNER responded that both would be correct. She said
artifacts are preserved in place at sites, and a permit would be
issued to excavate the site. When artifacts are removed with a
permit, they are reposited in the Alaska State Museum in Juneau
or in the Museum of the North in Fairbanks. She provided that
other museums may borrow the artifacts for displays.
1:32:47 PM
REPRESENTATIVE DRUMMOND, with a follow-up question, expressed
the understanding that when an industry would like to use a
potentially historic or prehistoric piece of land, the industry
would obtain a permit to remove any artifacts from "harm's way."
She questioned whether [Version I] would be referring to this
type of permit.
1:33:59 PM
MS. BITTNER responded that she is very familiar with the
process, as OHA is involved in thousands of projects, and, in
her position, she would be consulted with all federally funded
and state public construction projects. She said when there is
an adverse effect on a site, there would be a consultation to
negotiate a mitigation for the adverse effect. If it is a state
site, there would be a programmatic agreement or memorandum
agreement to spell out the mitigation and excavation process.
If the site cannot be avoided, the data will be recovered, and
if it is on state land, the artifacts will either go to the
Museum of the North or the Alaska State Museum. If it is found
to be on private land and part of the state's heritage, there
would be mitigation. She explained the process of determining
what would happen to the artifacts, as the type of mitigation
can vary.
1:36:21 PM
REPRESENTATIVE DRUMMOND, with a follow-up question, asked
whether this would apply, for example, when land is cleared for
electric transmission lines. She questioned whether the same
kind of care to investigate the potential for archaeological
resources would be taken.
1:36:48 PM
MS. BITTNER responded in the affirmative.
1:37:04 PM
VICE CHAIR SNYDER requested a written progression of the
legislation from the initial draft to [Version I], including who
participated and why the legislation had been instigated. She
questioned whether Alaska Native organizations had been
consulted.
MS. SCHROEDER responded that the current version of the bill has
taken "a while to get to," and DNR would need to be consulted on
the progression of the bill.
CHAIR CLAMAN deferred the question to the next hearing on the
legislation.
1:38:04 PM
CHAIR CLAMAN announced that HB 399 was held over.
^PRESENTATION: Uniform Law Commission
PRESENTATION: Uniform Law Commission
1:38:11 PM
CHAIR CLAMAN announced that the final order of business would be
a presentation by the Uniform Law Commission.
1:38:42 PM
REBECCA POLIZZOTTO, Chair, Alaska Delegation, Uniform Law
Commission (ULC), thanked the committee for extending the
invitation for the presentation. She listed the voting members
of the Alaska Delegation of ULC, as follows: Attorney General
Treg Taylor, Chief Justice Daniel Winfree, Andy Hemenway, and
herself. She listed Megan Wallace as a non-voting ex-officio
member, and she listed the three non-voting life members, as
follows: Art Peterson, Grant Callow, and Deborah Behr.
1:40:40 PM
ANDY HEMENWAY, Member, Alaska Delegation, Uniform Law
Commission, presented a PowerPoint presentation, titled "An
Introduction to the Uniform Law Commission" [hard copy included
in the committee packet]. He stated that ULC is a national
organization composed of members, who are also called
commissioners. The members represent all 50 states, the
District of Columbia, and some territories. The mission of ULC
is to draft proposed uniform legislation on topics for
consideration by the state legislatures. Established for 130
years, he stated that ULC is headquartered in Chicago, Illinois,
and funded by the states, private grants, and foundations. He
pointed out [on slide 4] that the 350 commissioners are all
attorneys. Of these, 40 percent are in private practice. The
remaining commissioners are mostly government attorneys, state
legislators, or judges. He said there is a "robust group of
commissioners with direct legislative experience" within ULC.
1:42:19 PM
MR. HEMENWAY, moving to [slide 5], indicated that each state
determines the manner of appointment of its commissioners. In
Alaska, the governor appoints all but one of the voting members.
The remaining member is appointed by the Alaska Supreme Court.
Moving to [slide 7], he indicated that commissioners serve
without compensation, attend ULC's annual meeting, and meet as a
delegation three to four times per year to review the
legislative agenda. He continued that individual commissioners
serve as members of study and drafting committees, and those who
are not state employees work with legislators to help get the
uniform acts into legislation.
MR. HEMENWAY demonstrated a flowchart [on slide 8] showing the
process of how drafted acts come into being. Ideas for proposed
uniform acts would come from individual commissioners, who get
their ideas from a variety of sources. An individual
commissioner would send a proposal for a uniform act to the ULC
Scope and Program Committee, whose job it is to determine
whether the proposal fits within ULC guidelines. He explained
that this committee would address two concerns: whether the
proposal should be uniform among the states, and whether the
proposal would be enacted by a substantial number of states. If
approved by the ULC Scope and Program Committee, the ULC
president appoints a drafting committee. The drafting committee
would include a broad range of commissioners, including some
with no expertise in the subject matter and others with direct
experience. He continued that the committee would also include
a liaison from the American Bar Association.
1:45:21 PM
MR. HEMENWAY said once a draft has been finalized, it is
presented to the full commission along with a report which
outlines the issues and why the decision was made. The drafted
uniform act must be approved by a majority of the states, with
each state receiving one vote. If the draft is approved by the
full commission, the ULC Style Committee will review the text.
Afterward the ULC Legislative Committee will prioritize proposed
acts. State delegations will develop their own individual state
plans for legislation with ULC providing support. He specified
that ULC's unique role is to provide a mechanism for states to
take control in the legislative process in areas where federal
legislation could be enacted, and, at the same time, help
maintain consistency in law at the state level [as seen on
slides 9-10]. He stated that before an act is introduced to
state legislatures, it should be relatively noncontroversial and
nonpartisan, fully thought out, and well drafted. He informed
the committee that ULC can provide support from experts and
interested parties as legislators consider a uniform act.
1:47:32 PM
MR. HEMENWAY reviewed the benefits of uniform state laws [as
listed on slide 12]. Referencing the current interconnected
environment, he said uniform state legislation, with similar
rules made in multiple states, can be a benefit to the economy
and to the social fabric. Having uniform legislation helps in
the planning and the dispute resolution processes. It can help
avoid conflicts in applicable law, as well as jurisdictional
conflicts. He added that uniform acts can modernize antiquated
laws and legal doctrines, bringing "expert solutions" to
emerging needs.
1:48:37 PM
MR. HEMENWAY reviewed subject matters suitable for uniform acts,
[on slide 13]. He stated that the Uniform Commercial Code
(UCC), which was proposed for legislatures by ULC, is the basic
law covering commercial transactions and banks across the
country. He pointed out that the formation and organization of
businesses is covered by the ULC's Uniform Partnership Act. In
reference to family and domestic relations law, he said ULC
promulgated the Uniform Child Custody Enforcement and
Jurisdiction Act. He said this act covers families who are
spread across multiple states and is a "classic example" of the
importance of uniform law. He pointed out the Uniform Probate
Code is a statewide ULC act which helps coordinate estates and
trusts between states.
1:50:21 PM
MR. HEMENWAY continued that real estate transactions can involve
multiple states and would be a subject matter for ULC. He said
when there is a lawsuit in one state with a judgement to be
enforced in a different state, the Interstate Enforcement of
Judgments would apply. He said there are various uniform acts
which help with this process. He mentioned that the Mediation
and Arbitration Act has been universally adopted and governs
administrative procedure.
1:51:05 PM
MR. HEMENWAY [moving to slide 14] indicated the ULC process is
open to the public and involves experts from various interested
parties. He said, "There's no backroom deals being cut, there's
no partisanship." He continued that the process is to come up
with the best solution to very common problems across
jurisdictions. He expressed ULC's desire not to disrupt its
successful reputation of 130 years. He credited this success to
quality volunteer expertise. He referenced the large amount of
information on ULC's website and recommended that, with any
interest they may have, committee members should reference the
acts listed. He expressed the opinion that ULC can provide a
great deal of help crafting legislation which would meet the
needs of society today.
1:52:55 PM
CHAIR CLAMAN expressed the understanding that ULC does not do
criminal law.
MR. HEMENWAY responded in the affirmative.
1:53:13 PM
DEBORAH BEHR, Member, Alaska Delegation, Uniform Law Commission,
stated that ULC currently has a study committee on cybercrime.
The request was made by the National Sheriffs' Association, as
sheriffs had expressed difficulty in keeping up with changes in
technology. She explained that the association is interested in
civil remedies available, as individuals under suspicion may not
be assessable through the criminal system. Each state has tried
to set its own penalties for cybercrime, but ULC has been asked
for help. She said the study is open to the public and
available to interested committee members. Responding to Chair
Claman, she confirmed that [ULC's involvement with state
legislation in this way] would be an exception to the rule.
1:54:23 PM
VICE CHAIR SNYDER questioned whether ULC would address consent
in sexual assault cases.
MS. BEHR responded that the issue would not likely pass
uniformly between all the 50 states, and ULC would probably not
take this on.
1:54:59 PM
MS. BEHR overviewed a handout dated March 12, 2022, [included in
the committee packet]. She stated that all states have enacted
a form of UCC, which is ULC's gold standard act. She explained
that UCC facilitates the selling of products across state lines,
and it addresses issues such as faulty products or delinquent
payments. She stated ULC created a drafting committee to
address new, emerging technologies, such as bitcoin,
cryptocurrency, and nonfungible tokens. She said that currently
there is uncertainty as to the legal criteria governing
controllable electronic records, and this uncertainty creates
commercial risk. Because UCC does not address electronic
records, there is a vacuum and people are reluctant to deal with
this type of commerce. She said the drafting committee consists
of nationwide experts in all areas. She estimated that it will
take two years to complete the task.
MS. BEHR stated that during the COVID-19 pandemic the
legislature in Alaska passed an amendment to allow the witnesses
for wills to participate via videoconferencing, but it has since
expired. She suggested that the committee look at the Uniform
Electronic Wills Act, as it would allow wills to be done
electronically, as opposed to using paper. She said people do
not use paper any longer. Everything is electronic, such as the
Permanent Fund Dividend application. She argued, as the world
makes this change, there could be a major issue with the courts,
and it is important for interstate recognition of electronic
wills, especially with a travelling public that commonly uses
electronics for important legal transactions. Witnesses for
wills could be anywhere in the world, and signatures could be
made electronically. She said this bill would address the
issue, and it is final and ready for review.
1:57:58 PM
MS. BEHR, touching again on the cybercrime bill, said that the
process is just beginning, and the National Sheriffs'
Association is interested in seeing a uniform solution in all 50
states.
1:58:18 PM
CHAIR CLAMAN questioned the status of a potential data privacy
bill.
MS. BEHR responded that there is a ULC bill on the subject, and
it is available for review on the website.
CHAIR CLAMAN questioned whether the bill has been through the
review process and formed to be adopted by legislatures.
MS. BEHR expressed the understanding this would be correct, and,
if not, it is in the very final stages.
1:59:01 PM
CHAIR CLAMAN expressed appreciation for the reminder about
electronic wills. He stated that the legislature adopted
provisions allowing electronic remote notaries, but it was not a
ULC law.
1:59:36 PM
REPRESENTATIVE DRUMMOND questioned whether a committee bill
could correct the ability of a will to be signed by
videoconferencing. She speculated that it may be too late in
the legislative session and inquired whether people would expect
to be able to do this.
1:59:55 PM
CHAIR CLAMAN explained that this had been added to the
electronic notary bill with a time expiration, so it is not
permanent. He suggested it could be investigated as the subject
of a committee bill. He suggested contacting [the Estate
Planning & Probate Law - Alaska Bar] to determine if there is
time.
2:00:53 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:01 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 399 Work Draft Committee Substitute v. I 4.4.2022.pdf |
HJUD 4/4/2022 1:00:00 PM HJUD 4/6/2022 1:00:00 PM |
HB 399 |
| HB 399 v. A 3.14.2022.PDF |
HJUD 4/1/2022 1:00:00 PM HJUD 4/4/2022 1:00:00 PM HJUD 4/6/2022 1:00:00 PM |
HB 399 |
| HB 399 Transmittal Letter 3.10.2022.pdf |
HJUD 4/1/2022 1:00:00 PM HJUD 4/4/2022 1:00:00 PM HJUD 4/6/2022 1:00:00 PM |
HB 399 |
| HB 399 Sectional Analysis v. A 3.15.2022.pdf |
HJUD 4/1/2022 1:00:00 PM HJUD 4/4/2022 1:00:00 PM HJUD 4/6/2022 1:00:00 PM |
HB 399 |
| HB 399 Fiscal Note DNR-DPOR 3.14.2022.pdf |
HJUD 4/1/2022 1:00:00 PM HJUD 4/4/2022 1:00:00 PM HJUD 4/6/2022 1:00:00 PM |
HB 399 |
| Alaska Uniform Law Commission Presentation to HJUD Committee 3.23.2022.pdf |
HJUD 4/6/2022 1:00:00 PM |
|
| Uniform Law Commission Items of Interest for Alaska 3.12.2022.pdf |
HJUD 4/6/2022 1:00:00 PM |