Legislature(1997 - 1998)
03/21/1998 10:07 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 21, 1998
10:07 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Ivan Ivan, Vice Chairman
Representative Ethan Berkowitz
Representative Fred Dyson
Representative Kim Elton
MEMBERS ABSENT
Representative Mark Hodgins
Representative Al Vezey
COMMITTEE CALENDAR
SENATE BILL NO. 307 am
"An Act relating to conditions for filling vacancies in the office
of United States senator; and providing for an effective date."
- MOVED HCSSB 307(STA) OUT OF COMMITTEE
HOUSE BILL NO. 462
"An Act relating to the contents of certain state documents."
- MOVED CSHB 462(STA) OUT OF COMMITTEE
* HOUSE BILL NO. 466
"An Act relating to violations of state election laws."
- HEARD AND HELD
HOUSE BILL NO. 468
"An Act relating to damages awarded in complaints before the State
Commission for Human Rights."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: SB 307 AM
SHORT TITLE: U.S. SENATE VACANCIES
SPONSOR(S): SENATOR(S) HALFORD, Leman, Green, Miller, Torgerson,
Pearce, Ward, Phillips, Taylor, Kelly
Jrn-Date Jrn-Page Action
2/16/98 2525 (S) READ THE FIRST TIME - REFERRAL(S)
2/16/98 2525 (S) JUDICIARY
3/02/98 (S) JUD AT 1:30 PM BELTZ ROOM 211
3/02/98 (S) MINUTE(JUD)
3/03/98 (S) RLS AT 11:35 AM FAHRENKAMP RM 203
3/03/98 (S) MINUTE(RLS)
3/03/98 2716 (S) JUD RPT 2DP 1NR
3/03/98 2716 (S) DP: TAYLOR, MILLER NR: PARNELL
3/03/98 2716 (S) ZERO FISCAL NOTE (GOV)
3/04/98 2735 (S) RULES TO CALENDAR 3/4/98
3/04/98 2737 (S) READ THE SECOND TIME
3/04/98 2737 (S) ADVANCED TO THIRD READING UNAN
CONSENT
3/04/98 2737 (S) READ THE THIRD TIME SB 307
3/04/98 2737 (S) COSPONSOR: KELLY
3/04/98 2737 (S) PASSED Y19 N1
3/04/98 2737 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
3/04/98 2737 (S) DUNCAN NOTICE OF RECONSIDERATION
3/05/98 2756 (S) RECON TAKEN UP - IN THIRD READING
3/05/98 2756 (S) RETURN TO SECOND FOR AM 1 UNAN
CONSENT
3/05/98 2756 (S) AM NO 1 OFFERED BY DONLEY
3/05/98 2756 (S) AM NO 1 ADOPTED Y11 N9
3/05/98 2757 (S) AUTOMATICALLY IN THIRD READING
3/05/98 2757 (S) PASSED ON RECONSIDERATION Y15 N5
3/05/98 2757 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
3/05/98 2759 (S) TRANSMITTED TO (H)
3/06/98 2533 (H) READ THE FIRST TIME - REFERRAL(S)
3/06/98 2533 (H) STATE AFFAIRS
3/19/98 (H) STA AT 8:00 AM CAPITOL 102
3/19/98 (H) MINUTE(STA)
3/21/98 (H) STA AT 10:00 AM CAPITOL 102
BILL: HB 462
SHORT TITLE: USE OF STATE MONEY FOR IMAGES/MESSAGES
SPONSOR(S): FINANCE
Jrn-Date Jrn-Page Action
2/25/98 2429 (H) READ THE FIRST TIME - REFERRAL(S)
2/25/98 2429 (H) STATE AFFAIRS, FINANCE
3/12/98 (H) STA AT 8:00 AM CAPITOL 102
3/12/98 (H) MINUTE(STA)
3/21/98 (H) STA AT 10:00 AM CAPITOL 102
BILL: HB 466
SHORT TITLE: CAMPAIGN MISCONDUCT: FALSE INFORMATION
SPONSOR(S): STATE AFFAIRS
Jrn-Date Jrn-Page Action
3/06/98 2542 (H) READ THE FIRST TIME - REFERRAL(S)
3/06/98 2542 (H) STATE AFFAIRS, JUDICIARY
3/19/98 (H) STA AT 8:00 AM CAPITOL 102
3/19/98 (H) MINUTE(STA)
3/21/98 (H) STA AT 10:00 AM CAPITOL 102
WITNESS REGISTER
BILL STOLTZE, Legislative Administrative Assistant
to Senator Rick Halford
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
Telephone: (907) 465-4958
POSITION STATEMENT: Provided information on SB 307.
REPRESENTATIVE GENE THERRIAULT
Alaska State Legislature
Capitol Building, Room 511
Juneau, Alaska 99801
Telephone: (907) 465-4797
POSITION STATEMENT: Sponsor of HB 462.
NANCI JONES, Director
Permanent Fund Dividend Division
Department of Revenue
P.O. Box 110460
Juneau, Alaska 99811-0460
Telephone: (907) 465-2323
POSITION STATEMENT: Provided testimony on HB 462.
PAT CARTER, Legislative Assistant
to Representative Mark Hodgins
Alaska State Legislature
Capitol Building, Room 110
Juneau, Alaska 99801
Telephone: (907) 465-2283
POSITION STATEMENT: Presented sponsor statement for HB 466.
ACTION NARRATIVE
TAPE 98-40, SIDE A
Number 0001
CHAIR JEANNETTE JAMES called the House State Affairs Standing
Committee meeting to order at 10:07 a.m. Members present at the
call to order were Representatives James, Berkowitz, Dyson, and
Elton. Representative Ivan arrived at 10:11 a.m.
SB 307 am - U.S. SENATE VACANCIES
Number 0009
CHAIR JAMES announced the first order of business was SB 307 am,
"An Act relating to conditions for filling vacancies in the office
of United States senator; and providing for an effective date."
She noted she had before her a committee substitute that was
identical to the original bill.
Number 0020
REPRESENTATIVE FRED DYSON made a motion to adopt proposed committee
substitute, 0-LS1574\F, Glover, 3/20/98 as the working draft.
There being no objection, that version was before the committee.
Number 0026
BILL STOLTZE, Legislative Administrative Assistant to Senator Rick
Halford, Alaska State Legislature, explained that the version of SB
307 just adopted by the committee does not contain an amendment
adopted on the Senate floor that required confirmation by the
legislature. He indicated that he heard Assistant Attorney
General Jim Baldwin's testimony given at the previous meeting and
understood the committee's concerns. He stated he would have
spoken in favor of Representative Berkowitz's amendment on Senator
Halford's behalf at that same meeting, but did not have the
opportunity to do so.
CHAIR JAMES maintained that there is a good rationale for
Representative Berkowitz's amendment but her concern is its cost.
She asked Mr. Stoltze if Senator Halford would be happy with the
adoption of that amendment.
Number 0047
MR. STOLTZE said he does not expect the provision of the amendment
will need to be implemented, and hopes it will not, but Senator
Halford feels the cost will probably be a one-time expenditure.
Mr. Stoltze stated, "We've seen the value of a U.S. Senate seat.
I guess it's a pretty good pay-off if you do it right the first
time."
CHAIR JAMES stated the committee would have to vote to rescind its
action on failing to approve Amendment 1.
Number 0066
REPRESENTATIVE ETHAN BERKOWITZ made a motion to rescind the
committee's previous failure to adopt Amendment 1. There being no
objection, it was so ordered.
REPRESENTATIVE DYSON asked for an explanation of that action.
CHAIR JAMES explained Amendment 1 was proposed by Representative
Berkowitz. That amendment requires that a vacant U.S. Senate seat
be filled by a special election, rather than by an appointment by
the Governor.
REPRESENTATIVE DYSON asked if committee members had a copy of the
amendment.
CHAIR JAMES said a copy should be in each committee members'
packet.
Number 0106
CHAIR JAMES announced Representative Ivan had arrived. She
informed him that the committee had just rescinded its action
failing to adopt Amendment 1.
REPRESENTATIVE BERKOWITZ indicated the amendment essentially
requires a special election to be held to fill a U.S. Senate seat
under all circumstances, instead of requiring a gubernatorial
appointment.
Number 0133
CHAIR JAMES noted Representative Ivan wanted to hear from Mr.
Stoltze on this issue.
MR. STOLTZE confirmed that Senator Halford does support the
amendment that was proposed by Representative Berkowitz because it
moves the legislature in the same direction as it is going with the
constitutional problems of legislative confirmation.
CHAIR JAMES stated the motion to adopt Amendment 1 was before the
committee.
REPRESENTATIVE DYSON maintained the election of public officers is
inordinately precious in our process, and although he appreciates
the concerns expressed about the cost, he believes a participatory
democracy is so precious that the legislature should bite the
bullet and spend the money.
Number 0165
CHAIR JAMES asked if there are any objections to the amendment.
There being no objection, Amendment 1 was adopted.
Number 0170
REPRESENTATIVE BERKOWITZ made a motion to move HCSSB 307(STA) out
of committee with individual recommendations and the attached
fiscal notes. There being no objection, HCSSB 307(STA) moved out
of the House State Affairs Standing Committee.
BARBARA COTTING, Legislative Assistant to Chair James, asked if she
would have to get another fiscal note on the bill.
CHAIR JAMES responded there may not be a fiscal note because no
special election is scheduled.
HB 462 - USE OF STATE MONEY FOR IMAGES/MESSAGES
Number 0190
CHAIR JAMES announced the next order of business was HB 462, "An
Act relating to the contents of certain state documents," sponsored
by Representative Therriault. She said she would entertain a
motion to adopt the proposed committee substitute.
Number 0208
REPRESENTATIVE IVAN IVAN made a motion to adopt the proposed
committee substitute for HB 462, Version 0-LS1527\H, Bannister,
3/20/98, for consideration. There being no objection, it was so
adopted.
CHAIR JAMES called on Representative Gene Therriault, sponsor of
the bill to testify.
Number 0217
REPRESENTATIVE GENE THERRIAULT, sponsor, Alaska State Legislature,
stated the changes primarily dropped the restriction on placing a
message and photo to cover only those who hold an elected state
office. Agency personnel would be able to put information on the
longevity bonus check stub, for example. Information on the
dividend application about the program would be appropriate, if
signed by the commissioner or director of the program. Section
1(b) reads, "A state agency may not place a message on or with an
application form, a warrant, or a direct deposit notice provided by
the agency unless the message is (1) from a state agency employee
who is not an elected state official; and (2) required by law,
necessary for the operation of the document, related to seasonal
health issues including flu shot reminders, or limited to stating
the requirements or deadlines of a program or activity of a state
agency." The wording was changed so that clearly on the longevity
bonus check stub there could be information about the deadline for
the permanent fund dividend, for example. He did not want to
preclude that from happening. The definitions in the rest of the
bill remain the same.
Number 0251
REPRESENTATIVE BERKOWITZ stated there is no effective date for the
bill. He wondered whether there is anything in the "hopper" that
would violate the bill.
Number 0257
REPRESENTATIVE THERRIAULT stated certainly the next permanent fund
dividend applications are far enough away that they would not be at
the print shop now. There might be a problem with the longevity
bonus check stubs, however. An immediate effective date isn't
necessary, if it would cause some problems with the things in the
works already.
Number 0265
CHAIR JAMES stated anything started before an effective date would
be precluded, unless there was time to change it. If something had
already gone to print before the effective date, it wouldn't be
affected.
Number 0276
REPRESENTATIVE THERRIAULT stated it is up to the committee to
decide if a specific effective date is necessary. It might be up
to what the Administration says in terms of what it has in the
"hopper," and what type of time line would be needed in order to
change any kind of document in the works.
Number 0281
CHAIR JAMES stated no one from the Administration is here, except
for Nanci Jones from the Permanent Fund Dividend Division.
REPRESENTATIVE THERRIAULT stated Pat Pourchot from the Office of
the Governor spoke to him about the bill and expressed that the
Administration thought it might be an encroachment on their basic
powers. It was a pleasant conversation, but there was a difference
in points of view. "Certainly, the legislative branch, the
Administration has money budgeted to get their message out. But,
we don't do that on regular, programmatic documents. And I think
the -- part of the problem is that you start politicizing those
documents and those programs. And there are other means to get
your message out and I really don't think that we should allow that
kind of information to be placed on these documents."
Number 0302
REPRESENTATIVE KIM ELTON stated, in reference to the timing, the
bill speaks more to when a document is printed rather than when it
would be distributed. It seems, therefore, that there would not be
a problem with the effective date. Documents prepared up until the
time of the effective date would not be affected.
CHAIR JAMES stated that would be her read too. She called on Nanci
Jones from the Permanent Fund Dividend Division, Department of
Revenue, to testify.
Number 0316
NANCI JONES, Director, Permanent Fund Dividend Division, Department
of Revenue, testified in reference to the printing of the longevity
bonuses, retirement and benefit checks, permanent fund dividend
checks, and payroll checks stating they all try to buy warrant
stocks together. Each has something different printed on the top
of the warrant. "There might be a place where we would have to
destroy whatever we had in order to buy new stock." She is not
sure about the intricacies of the longevity bonus mentioned
earlier. The booklet does not go to print until late fall.
CHAIR JAMES entertained a motion to move the bill out of the
committee.
Number 0332
REPRESENTATIVE IVAN made a motion to move the proposed committee
substitute for HB 462, Version 0-LS1527\H, Bannister, 3/20/98, from
the committee with individual recommendations and the attached
fiscal note(s). There being no objection, CSHB 462(STA) was so
moved from the House State Affairs Standing Committee.
HB 466 - CAMPAIGN MISCONDUCT: FALSE INFORMATION
Number 0345
CHAIR JAMES announced the next order of business would be HB 466,
"An Act relating to violations of state election laws," sponsored
by Representative Hodgins.
PAT CARTER, Legislative Assistant to Representative Hodgins, Alaska
State Legislature, stated HB 466 is an attempt to clean up some of
the campaign tactics that have been more prevalent in past years.
The practice of casting unproven dispersions in a desperate attempt
to sway public opinion in the last days of an election has become
pervasive in recent elections and needs to be stopped. HB 466
raises the penalty from a class A misdemeanor to a class C felony
for knowingly distributing false information regarding the
candidate. "We've attached some leeway on that so that if a person
was so -- the person has to knowingly disseminate that
information." He said for the purposes of this bill, disseminate
means to convey to another person by any means. They have to
disseminate that information with regard to it relating to a
candidate for election and such information will provoke a
reasonable person under the circumstances to a breach of the peace
or to construe as damaging to the candidate's reputation for
honesty, integrity, or qualification to serve if elected. Only a
defeated candidate may contest the nomination or election of a
person for violation of this section.
Number 0376
CHAIR JAMES stated if someone knowingly distributed false
information and the person was elected anyway, they cannot be
charged.
MR. CARTER said that's correct. They would still be able to pursue
civil damages. He said the way the bill reads is only a defeated
candidate may contest the nomination or election of a person for a
violation of this section.
CHAIR JAMES reiterated if you were a defeated candidate and there
was someone on the other side, not necessarily the candidate, but
someone else who was supporting that candidate, then they could
contest the election based on this challenge. She asked Mr. Carter
if that is what he meant.
MR. CARTER said, "I believe so."
Number 0401
REPRESENTATIVE BERKOWITZ stated the winning candidate obviously
will not contest the election, but there might be a third party.
He asked if the bill would want to preclude a third party from
contesting the election.
MR. CARTER replied the bill states that only a defeated candidate
may contest the election, not necessarily whether they were damaged
or not, but that a third party may contest the election. Mr.
Carter referred to Section 2, (1), subsection (b) and read the
following: "(b) Violation of this section is a corrupt practice.
However, notwithstanding AS 15.20.540, only a defeated candidate
may contest the nomination or election of a person for violation of
this section." He said only the defeated candidate may contest the
actual outcome of an election; a third party could not.
Number 0420
REPRESENTATIVE DYSON asked what the burden of proof is like to
establish the knowing distribution of false information. "Is it a
difficult one."
REPRESENTATIVE BERKOWITZ replied if it is a criminal case, the
burden of proof would lie on the state to prove beyond a reasonable
doubt that this person knowingly committed a crime.
REPRESENTATIVE DYSON asked how difficult is it to establish
(indisc.) practice.
MR. CARTER replied a person would have to have made statements
where they had a person come in and testify that this person had
actually told him that he was going to fabricate this information.
REPRESENTATIVE BERKOWITZ said "knowingly" is one of the highest
standards, and you can infer intent through circumstances. You
might not need for a person to say, "I'm going to falsify this,"
but you can observe through the method that he put the information
out or any of the circumstances around it that it was false.
Number 0442
CHAIR JAMES interjected and said she wanted to explain what she
thinks the practicality of "knowingly" is. The first measure would
be, is it false. If it happens to be something that is not false,
even though it's damaging, it doesn't apply. Secondly, when it's
false, did the person who made this statement know that it was
false. Chair James expressed the evidence of that would be if the
person didn't know, where did the person get the information and
then that person would have to provide proof that they had
information that they believed not to be false.
Number 0452
MR. CARTER stated if a person made a false statement about a
candidate, whether through an advertisement on the radio, or in a
newspaper publication, or whatever, and that candidate proved that
it was a false statement, and if that person continued to run the
false statement, then under the purposes of this legislation, each
day it continued to run would constitute a separate violation. You
would also have a reasonable case if a person declared publicly
that they will fabricate information about a candidate.
CHAIR JAMES asked what if this happened in the last few days of an
election and that person doesn't have time to prove that it's their
fault.
MR. CARTER replied that is always going to be the problem. But
what the legislature is up against is the restriction on freedom of
speech and the courts have been pretty conservative with regard to
how to restrict that.
Number 0475
CHAIR JAMES then asked if the candidate gets elected anyway,
regardless of this, could they do anything about it and yet maybe
they would only have a civil case against them for damaging their
character.
MR. CARTER answered in the affirmative.
REPRESENTATIVE DYSON remarked that truth is an ultimate defense
against defamation of character. To him, another defense would be
ignorance and proving the lack of ignorance must be an interesting
thing to establish in court. He stated he is very intrigued about
that. He also asked what the range of penalties are in a class C
felony.
MR. CARTER referred to Section 2, subsection (a) stating there is
language which addresses knowing the information is false or with
reckless disregard for whether the information is false.
REPRESENTATIVE DYSON reiterated and asked Mr. Carter what the range
of penalties are in a class C felony.
MR. CARTER responded a typical class C felony would be similar to
someone writing bad checks or a vehicle theft.
REPRESENTATIVE DYSON then asked what the penalties would be.
REPRESENTATIVE BERKOWITZ interjected and said the penalties would
be up to five years in jail and he believes $10,000 in fines.
REPRESENTATIVE DYSON asked if other political jurisdictions have
passed similar legislation and what has been the history.
MR. CARTER replied he has not had the chance to get the information
from the Legislative Legal and Research Division (legal division)
whether or not other states have passed this type of legislation.
He indicated the legal division is currently working on it. The
problem, to date, given that this is a class A misdemeanor, the
courts have all but ignored this type of violation. People have
had their reputations impugned and their integrity, as well as
long-term damage to their family standing in the community. He
feels the public has clearly shown that they are tired of this type
of negative campaigning. The fact that someone can get away with
damaging one's character with no recourse, is the purpose of this
legislation.
REPRESENTATIVE DYSON asked if the sponsor discussed this with the
Administration and the Office of the Attorney General.
Number 0516
MR. CARTER replied the attorney general's office is not weighed in.
They have not formed an opinion on this legislation.
REPRESENTATIVE DYSON again asked if the sponsor has talked to the
Administration regarding this legislation.
MR. CARTER answered no.
REPRESENTATIVE KIM ELTON asked, "I'm curious, Pat, as to whether
this law in its current form were -- it's a simple misdemeanor --
has ever been applied?"
MR. CARTER replied, "Someone has actually -- and without mentioning
names and furthering the spreading of rumor..."
REPRESENTATIVE ELTON interjected and said, "For public record, have
the charges been brought?"
MR. CARTER said he did not know if charges were actually brought
and then dropped, but he knows the likelihood of the court taking
it up weighed in as to whether or not they were going to pursue it.
Number 0534
REPRESENTATIVE ELTON indicated he is concerned with the issue of
freedom of speech. To him it seems they are not just holding out
the thread of serious consequences if someone knowingly distributes
false information. They are also creating a situation if, in the
last days of a campaign, someone says something "nasty" about a
candidate, that candidate can go to the radio station and ask for
that advertisement to be removed because it is untruthful, and the
radio station could incur a penalty of up to five years in jail and
a $10,000 fine. He noted that whether the statement was true or
not, or whether it is misleading which is even more difficult to
prove, what that candidate in this situation has done is restrict
speech, specifically political speech, which is very important.
MR. CARTER remarked he realizes this legislation is treading near
the edge of stepping on the freedom of speech, but he doesn't
believe they have crossed that edge. If you get into a debate as
to whether or not a person has impugned a candidate's reputation
with a false statement, certainly it's hard to disprove it. It
would be a judgment call on whether it would be the radio station
or a newspaper or whatever as to whether or not that information is
false. But the person would have to bear the consequences as a
result of the election.
Number 0557
CHAIR JAMES stated it appears to her if someone purchased some
advertisement and it was false, she does not feel that the radio or
television station could be held liable, unless someone brought in
proof and they felt it was journalistically proper to say they
would not run the advertisement anymore. She indicated she would
not want to set up a situation where an innocent bystander to the
issue would be put in jeopardy.
MR. CARTER explained the way the legislation is currently drafted
is that a radio station or newspaper would not be held liable
unless a journalist that was under their employee was the
fabricator of the information himself. Whether or not they would
pull the information would be their own decision.
REPRESENTATIVE ELTON informed the committee there are two different
kinds of speech that are involved in a radio station: journalistic
speech and paid speech. An advertisement is paid speech. He said
the way he interprets the bill is that a person commits a crime if
they disseminate false or misleading information. It's not just
the person who originates the information, it is also the person
disseminating the information. If he went into a radio station and
asserts as a victim that the information is untrue, whether the
information is true or not, it puts the radio station in a very
difficult position. The radio station has to decide who to
believe, especially if it happens a week before an election. The
candidate can inform the radio station it will take them four or
five days to prove the information is untrue, but everyday they
continue running the advertisement, is another day of liability
they accrue if they continue to run it.
CHAIR JAMES emphasized the legislature needs to do something to
stop this kind of activity because it is proliferating. She said
there needs to be a deterrent for this type of misconduct. It
appears to her, after reading this legislation, it will probably
never get to the application. Chair James' concern is that she
does not want to have an application that could be misused or get
to the wrong party.
Number 0599
REPRESENTATIVE BERKOWITZ noted that a radio or television station
could be guilty the way the legislation is currently written.
MR. CARTER emphasized that a person must knowingly distribute that
information. If a candidate advised the radio or television
station that the information was false, that would not constitute
them knowingly continuing to do it.
REPRESENTATIVE BERKOWITZ asked if that would put the radio or
television station on notice.
MR. CARTER answered in the affirmative.
REPRESENTATIVE BERKOWITZ stated if at that point, a candidate did
not check it out, is there a recklessness to what they are doing.
MR. CARTER said he agreed.
Number 0608
REPRESENTATIVE BERKOWITZ referenced the word "misleading" stating
there is no parallel structure with that word throughout Section 2,
subsection (a) which reads "...if the person disseminates false or
misleading information, knowing that the information is false or
with reckless disregard for whether the information is false..."
He noted there is no mention of the word "misleading" in the latter
phrases of this section which is an ambiguity. Representative
Berkowitz advised that the purpose of this legislation is to try to
limit attack advertisements and get campaigns back to discussions
of issues which need to be based on fact and not innuendo.
REPRESENTATIVE BERKOWITZ wanted to clarify the courts have nothing
to do with bringing the charge. Charges are brought by prosecuting
agencies by district attorneys. He pointed out the courts are not
imposing penalties because cases are not being brought forth. He
expressed there is a misunderstanding of the process and referred
to the sponsor statement, "the courts have all but ignored any
attempt to curb this practice." He said it is not up to the courts
to enforce the law. "They execute the law when it comes to them."
Representative Berkowitz stated, "This is a 1996 law, as far as I
understand. I'd like to see it get a chance to grow some legs and
see if it works as a misdemeanor because it is a serious penalty.
I'm also concerned that only a defeated -- well, I guess it's post
campaign..."
Number 0630
CHAIR JAMES stated she believes it means only the damaged person
and they have to be damaged first.
REPRESENTATIVE BERKOWITZ commented he feels there is an inequity
with that because "what we're trying to do is you want to have more
parallelism." It's not the winning or losing at some point that is
important, it's how you play the game. "And we're saying if you
win, then it doesn't matter how the other side plays the game. And
if we're trying to clean up the process, I think the folks who play
the game badly and still lose should still suffer consequences for
that."
Number 0635
CHAIR JAMES gave an example, if a particular candidate was having
an affair with someone else and it was false, there is also the
someone else who was misused in this case. She asked if that
person were not a candidate, they could not make these charges.
MR. CARTER replied that this was a suggestion put in by the legal
division. He said he could get a written description of why they
felt it was necessary.
REPRESENTATIVE ELTON commented the way he reads the legislation is
the restriction on the defeated candidate is only on whether or not
you contest the election, not whether or not you committed a class
C felony.
MR. CARTER indicated the violation of this section is a corrupt
practice. The bill would still constitute corrupt practice, but
the election could not be contested.
Number 0651
REPRESENTATIVE DYSON referred to page 2, line 23 and asked why
"breach of the peace" is included in the legislation.
MR. CARTER informed the committee that during the last election
there was an incident where a candidate distributed false
information about a person who was not a candidate. The person who
was not the candidate went to the candidate's house and as a
result, a fist fight ensued. That is what he feels would
constitute a breach of the peace.
REPRESENTATIVE DYSON referred to Section 2, subsection (2) of HB
466 and asked "You're guilty of campaign misconduct if what you do
would be construed as provoking a reasonable person to punch
somebody's lights out?"
MR. CARTER answered in the affirmative. He said it would also have
to include a candidate who is running for election. In non-
election years, it would not be applicable.
REPRESENTATIVE DYSON asked if there is language in the legislation
that requires the state to prosecute the action.
CHAIR JAMES expounded on Representative Dyson's point asking if the
candidate whom false statements were made against loses the
election, can they contest the election on that point as well as
recounting the ballots.
MR. CARTER answered "they could."
Number 0690
CHAIR JAMES said if a candidate contested an election because false
statements were made against them, she would assume the next step
would be to determine whether the offense was done and that there
was a direct relationship to the election. She asked, "If that
candidate challenges the election, who picks up the other ball and
runs with it to go to the prosecuting attorney and files a case?"
MR. CARTER replied the state would pursue that as a criminal action
and they would have to prove beyond a reasonable doubt that the
person who knowingly distributed that false information did do that
action.
CHAIR JAMES stated in this situation the state would be the
plaintiff.
MR. CARTER said that was correct.
CHAIR JAMES asked, "As a result of that person challenging the
election, what if the person won anyway, then what happens?"
MR. CARTER responded it's a civil case.
CHAIR JAMES asked if a candidate won an election, but still wanted
to file charges against the person making false statements about
them, would they have to file a civil case and pay their own
attorney's fees.
MR. CARTER answered in the affirmative.
Number 0706
CHAIR JAMES inquired if a person were found guilty in a civil case
which has a different level of proof than a criminal case, would
the same penalty apply or would there be a different penalty in a
civil case.
MR. CARTER responded the way he understands the legislation is that
the penalties would be substantially different. One would be
monetary damages and the other would be criminal damages.
CHAIR JAMES stated a candidate already has the opportunity to go to
a civil case on this.
MR. CARTER responded that is correct.
CHAIR JAMES inferred, "And probably what happens is that it's
expensive and they don't do it. And so if we mandate it so that
the state has to do it in these cases, then it will get done and it
won't be at the expense of the person who was ..."
REPRESENTATIVE ELTON interjected and stated if a person is
convicted of a felony, they are not allowed to vote.
REPRESENTATIVE ELTON asked if a person is not allowed to vote, are
they allowed to serve.
MR. CARTER responded no.
REPRESENTATIVE ELTON commented a person would not have to be an
undefeated candidate to get that person out of office. "Another
person could ...
TAPE 98-40, SIDE B
Number 0001
REPRESENTATIVE ELTON continued, "...false or misleading
information." If that person were convicted they would be out of
office if, in fact, it had been the other candidate who had been
responsible for distributing the information.
MR. CARTER advised Representative Elton a campaign manager could
not seek criminal charges. They could propose the case to the
state and have the state file the criminal charges.
REPRESENTATIVE ELTON stated he thought the defeated candidate is
the only one who can contest the election.
MR. CARTER stated that is correct.
REPRESENTATIVE ELTON asked if the legislation allows only the
defeated candidate to seek the felony charges.
MR. CARTER responded in the negative and explained anyone could ask
the state to pursue those charges, and then the state would pursue
the charges, not a campaign manager or an innocent bystander.
REPRESENTATIVE ELTON asked if a person wanted to file charges
against someone who knowingly distributed false information about
a person, the state could then pursue that case. And if the person
who distributed that information was in fact the other candidate,
that person would be out of office because, if they were convicted,
they would be a felon.
MR. CARTER stated he believes that is correct, depending on the
timing of it and how long it would take to go before the court. In
the meantime, the defeated candidate would be able to contest the
election. The way he understands the legislation is that any
person could bring information to the state and ask that this
person be prosecuted given the information that is presented to
them. At that point, the state would decide if there is a case or
not. An innocent bystander or campaign manager would not be the
people that would actually bring the charges against this person.
Number 0059
CHAIR JAMES stated a number of legal questions need to be answered
regarding this legislation and informed the committee they have
some options. Since HB 466 has a referral to the Judiciary
Committee, she feels the legal issues should be addressed there, as
well as having representation from the legal division and attorney
general's office. The other option would be for the sponsor to try
to work through some of the issues in this committee or put in a
subcommittee and deal with it. Chair James stated the committee
could also decide to put a stop to this practice because it is in
the best interest of the state and proceed to do some law changes.
She asked the sponsor what he would prefer to do.
Number 0120
MR. CARTER requested a tighter definition on the questions proposed
by the committee. He said the committee just debated issues
regarding this legislation and he is unclear what questions the
committee wants answered.
CHAIR JAMES stated the questions are quite clear to her, for
example: 1) who gets to bring these charges; 2) how are the
charges brought about; 3) who all is involved; 4) who has the right
to do this; and 5) how does it affect the radio and television
stations. She stated the committee has some concerns that need to
be addressed and answered by the sponsor, not the committee. The
bill could be brought up at the next meeting if that would give the
sponsor enough time to investigate the concerns of the committee
and it would also give the sponsor some time to contact the legal
division.
Number 0147
REPRESENTATIVE BERKOWITZ stated a couple of other issues need to be
addressed as well. Aside from the false and misleading issues not
being parallel throughout, Section 2 relates solely to candidates,
not initiatives, which is a retreat from the current Section 1.
Section 1 covers election propositions or questions, so he feels
they are retreating. He said people can tell lies about
propositions or initiatives without any consequence, which he feels
is a retreat.
CHAIR JAMES told Representative Berkowitz he is right on point
asking, "Who are we trying to protect? Are we trying to protect
the candidate or are we trying to protect the public to be able to
make a good decision?" She stated she feels the public is being
offended because they are given information that is not true and
then are making a decision based on false information, therefore,
they may not be making the decision they would be making if they
had the truth. "It seems to me the public is the one we're trying
to protect here." The candidate just happens to be in this
process.
REPRESENTATIVE BERKOWITZ referred to Section 2 stating a candidate
can complain only if their honestly, integrity, or qualifications
are challenged, not because someone misrepresents their position on
an issue. He pointed out a candidate has no way of pursuing that
under this bill.
Number 0249
REPRESENTATIVE DYSON inquired what would happen if the losing
candidate contested an election based on false campaign
information. He asked if that would fall under the Lt. Governor's
purview.
MR. CARTER said he believes it does.
REPRESENTATIVE DYSON asked if that would also fall under the
Elections Commission.
MR. CARTER answered correct.
REPRESENTATIVE DYSON asked what the Election Commission process is.
He stated he suspects it is all prescribed.
MR. CARTER replied it is prescribed but he could not speak in
regard to the actual procedure behind it.
Mr. 0272
CHAIR JAMES asked Mr. Carter how he wants to proceed on this
legislation.
MR. CARTER said he would be happy to investigate the issues brought
forth by the committee as well as discuss them with the legal
division. He indicated the original intent of the bill is to
protect a person on more of a personal level while they are
campaigning, and also to increase the penalty to a class C felony.
Number 0295
CHAIR JAMES suggested Mr. Carter contact the bill sponsor and ask
if he wants HB 466 assigned to a subcommittee.
ADJOURNMENT
Number 0320
CHAIR JAMES adjourned the House State Affairs Standing Committee
meeting at 11:10 a.m.
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