ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 27, 2005
1:22 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARING(S)
Board of Governors of the Alaska Bar [Continued from 4/18/05]
Joseph N. Faulhaber - Fairbanks
- CONFIRMATION(S) ADVANCED
CS FOR SENATE BILL NO. 140(JUD)
"An Act relating to spyware and unsolicited Internet
advertising."
- MOVED CSSB 140(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 269
"An Act relating to contribution actions relating to the release
of a hazardous substance; and providing for an effective date."
- MOVED HB 269 OUT OF COMMITTEE
HOUSE BILL NO. 268
"An Act relating to overtaking and passing certain stationary
vehicles."
- MOVED CSHB 268(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 276
"An Act relating to business license endorsements for tobacco
products, to holders of business license endorsements for
tobacco products, and to the employees and agents of holders of
business license endorsements for tobacco products."
- HEARD AND HELD
CS FOR SENATE BILL NO. 36(JUD)
"An Act relating to absentee ballots."
- MOVED HCS CSSB 36(JUD) OUT OF COMMITTEE
CS FOR SENATE JOINT RESOLUTION NO. 12(JUD)
Requesting the United States Senate to move quickly to a
majority floor vote of the United States Senate on all
nominations by President George W. Bush to the United States
Supreme Court.
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 140
SHORT TITLE: BAN INTERNET SPYWARE
SPONSOR(S): SENATOR(S) THERRIAULT
03/10/05 (S) READ THE FIRST TIME - REFERRALS
03/10/05 (S) L&C, JUD
03/22/05 (S) L&C AT 1:30 PM BELTZ 211
03/22/05 (S) Heard & Held
03/22/05 (S) MINUTE(L&C)
03/24/05 (S) L&C AT 2:00 PM BELTZ 211
03/24/05 (S) Moved SB 140 Out of Committee
03/24/05 (S) MINUTE(L&C)
03/29/05 (S) L&C RPT 3DP
03/29/05 (S) DP: BUNDE, DAVIS, STEVENS B
04/07/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/07/05 (S) Scheduled But Not Heard
04/08/05 (H) JUD AT 8:00 AM CAPITOL 120
04/08/05 (S) Scheduled But Not Heard
04/13/05 (H) JUD AT 8:30 AM BUTROVICH 205
04/13/05 (S) Heard & Held
04/13/05 (S) MINUTE(JUD)
04/14/05 (S) JUD AT 8:00 AM BUTROVICH 205
04/14/05 (S) Moved CSSB 140(JUD) Out of Committee
04/14/05 (S) MINUTE(JUD)
04/14/05 (S) JUD RPT CS 3DP 2NR SAME TITLE
04/14/05 (S) DP: SEEKINS, HUGGINS, THERRIAULT
04/14/05 (S) NR: FRENCH, GUESS
04/19/05 (S) TRANSMITTED TO (H)
04/19/05 (S) VERSION: CSSB 140(JUD)
04/20/05 (H) READ THE FIRST TIME - REFERRALS
04/20/05 (H) L&C, JUD
04/25/05 (H) L&C AT 3:15 PM CAPITOL 17
04/25/05 (H) Moved Out of Committee
04/25/05 (H) MINUTE(L&C)
04/26/05 (H) L&C RPT 2DP 5NR
04/26/05 (H) DP: LYNN, ANDERSON;
04/26/05 (H) NR: CRAWFORD, KOTT, LEDOUX, ROKEBERG,
GUTTENBERG
04/27/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 269
SHORT TITLE: HAZARDOUS SUBSTANCE RELEASE LIABILITY
SPONSOR(S): REPRESENTATIVE(S) RAMRAS
04/14/05 (H) READ THE FIRST TIME - REFERRALS
04/14/05 (H) RES, JUD
04/22/05 (H) RES AT 1:00 PM CAPITOL 124
04/22/05 (H) Scheduled But Not Heard
04/25/05 (H) RES AT 1:00 PM CAPITOL 124
04/25/05 (H) Moved Out of Committee
04/25/05 (H) MINUTE(RES)
04/26/05 (H) RES RPT 4DP 2NR
04/26/05 (H) DP: OLSON, LEDOUX, ELKINS, RAMRAS;
04/26/05 (H) NR: GATTO, CRAWFORD
04/27/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 268
SHORT TITLE: OVERTAKING/PASSING STATIONARY VEHICLES
SPONSOR(S): REPRESENTATIVE(S) RAMRAS
04/14/05 (H) READ THE FIRST TIME - REFERRALS
04/14/05 (H) TRA, JUD
04/19/05 (H) TRA AT 1:30 PM CAPITOL 17
04/19/05 (H) Moved Out of Committee
04/19/05 (H) MINUTE(TRA)
04/21/05 (H) TRA RPT 1DP 3NR
04/21/05 (H) DP: GATTO;
04/21/05 (H) NR: SALMON, THOMAS, ELKINS
04/25/05 (H) JUD AT 1:00 PM CAPITOL 120
04/25/05 (H) Scheduled But Not Heard
04/26/05 (H) JUD AT 1:00 PM CAPITOL 120
04/26/05 (H) Scheduled But Not Heard
04/27/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 276
SHORT TITLE: BUSINESS LICENSE TOBACCO ENDORSEMENT
SPONSOR(S): REPRESENTATIVE(S) KOTT
04/19/05 (H) READ THE FIRST TIME - REFERRALS
04/19/05 (H) JUD, FIN
04/26/05 (H) JUD AT 1:00 PM CAPITOL 120
04/26/05 (H) Scheduled But Not Heard
04/27/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 36
SHORT TITLE: ABSENTEE BALLOTS
SPONSOR(S): SENATOR(S) THERRIAULT
01/11/05 (S) PREFILE RELEASED 1/7/05
01/11/05 (S) READ THE FIRST TIME - REFERRALS
01/11/05 (S) STA, JUD
01/20/05 (S) STA AT 3:30 PM BELTZ 211
01/20/05 (S) Heard & Held
01/20/05 (S) MINUTE(STA)
02/01/05 (S) STA AT 3:30 PM BELTZ 211
02/01/05 (S) Moved CSSB 36(STA) Out of Committee
02/01/05 (S) MINUTE(STA)
02/02/05 (S) STA RPT CS 3DP 1NR NEW TITLE
02/02/05 (S) DP: THERRIAULT, WAGONER, HUGGINS
02/02/05 (S) NR: ELTON
02/08/05 (S) JUD AT 8:30 AM BUTROVICH 205
02/08/05 (S) Moved CSSB 36(JUD) Out of Committee
02/08/05 (S) MINUTE(JUD)
02/10/05 (S) JUD RPT CS 3DP 1NR NEW TITLE
02/10/05 (S) DP: SEEKINS, THERRIAULT, HUGGINS
02/10/05 (S) NR: FRENCH
03/02/05 (S) TRANSMITTED TO (H)
03/02/05 (S) VERSION: CSSB 36(JUD)
03/03/05 (H) READ THE FIRST TIME - REFERRALS
03/03/05 (H) STA, JUD
03/15/05 (H) STA AT 8:00 AM CAPITOL 106
03/15/05 (H) Heard & Held
03/15/05 (H) MINUTE(STA)
03/17/05 (H) STA AT 8:00 AM CAPITOL 106
03/17/05 (H) Moved HCS CSSB 36(STA) Out of Committee
03/17/05 (H) MINUTE(STA)
03/18/05 (H) STA RPT HCS(STA) 5DP 2NR
03/18/05 (H) DP: LYNN, GATTO, ELKINS, RAMRAS,
SEATON;
03/18/05 (H) NR: GARDNER, GRUENBERG
04/06/05 (H) JUD AT 1:00 PM CAPITOL 120
04/06/05 (H) <Bill Hearing Postponed>
04/22/05 (H) JUD AT 1:00 PM CAPITOL 120
04/22/05 (H) Scheduled But Not Heard
04/25/05 (H) JUD AT 1:00 PM CAPITOL 120
04/25/05 (H) Scheduled But Not Heard
04/27/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JOSEPH N. FAULHABER, Appointee
to the Board of Governors of the Alaska Bar
Fairbanks, Alaska
POSITION STATEMENT: Testified as appointee to the Board of
Governors of the Alaska Bar.
DAVID STANCLIFF, Staff
to Senator Gene Therriault
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Began the presentation on SB 140 on behalf
of the sponsor, Senator Therriault, and responded to questions;
presented SB 36 on behalf of the sponsor, Senator Therriault,
and responded to questions.
BENJAMIN G. EDELMAN
(No address provided)
POSITION STATEMENT: Assisted with the presentation of SB 140
and responded to a question.
REPRESENTATIVE JAY RAMRAS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke as the sponsor of HB 269; spoke as
the sponsor of HB 268.
BENJAMIN BROWN, Legislative Liaison
Office of the Commissioner
Department of Environmental Conservation (DEC)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 269.
GEORGE R. LYLE, Attorney at Law
Guess & Rudd, PC
Anchorage, Alaska
POSITION STATEMENT: On behalf of various clients, testified in
support of HB 269.
BRECK TOSTEVIN, Assistant Attorney General
Environmental Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 269 and
responded to questions.
MICHAEL O'HARE, Staff
to Representative Pete Kott
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 276 on behalf of the sponsor,
Representative Kott, and responded to a question.
CYNTHIA DRINKWATER, Assistant Attorney General
Commercial/Fair Business Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to a question during discussion
of HB 276.
DIANE CASTO, Section Manager
Prevention and Early Intervention Section
Division of Behavioral Health
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to HB 276 and
responded to questions.
CHRISTIE GARBE, Chief Executive Officer (CEO)
American Lung Association of Alaska
Anchorage, Alaska
POSITION STATEMENT: On behalf of the group, Alaskans for
Tobacco-Free Kids, testified in opposition to HB 276 and
responded to a question.
MIKE ELERDING
Northern Sales Company of Alaska, Inc.
(No address provided)
POSITION STATEMENT: Testified in support of HB 276 and asked
that the bill be passed.
STEVE RUSH
Holiday Stationstores, Inc.
(No address provided)
POSITION STATEMENT: Testified in favor of HB 276 and asked that
the bill be passed.
DAN RILEY, Vice President
Government Relations
Tesoro Refining and Marketing Company
(No address provided)
POSITION STATEMENT: Testified in support of HB 276.
LAURA A. GLAISER, Director
Central Office
Division Of Elections
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: During discussion of proposed Amendment 3
to SB 36, provided comments and responded to questions.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:22:11 PM. Representatives
McGuire, Coghill, Kott, Dahlstrom, and Gruenberg were present at
the call to order. Representatives Anderson and Gara arrived as
the meeting was in progress.
^CONFIRMATION HEARING(S)
^Board of Governors of the Alaska Bar
1:22:39 PM
CHAIR McGUIRE announced that the committee would first consider
the appointment of Joseph N. Faulhaber to the Board of Governors
of the Alaska Bar. [Mr. Faulhaber had previously provided
testimony on 4/18/05.]
CHAIR McGUIRE asked Mr. Faulhaber to pursue research on the
possibility of instituting a graduated licensing fee for those
that want to maintain an active license but are not practicing
in the private sector - those that donate their services to
nonprofits, for example - and give some consideration to the
fact that Alaska is number one with regard to the highest bar
exam fees.
1:25:28 PM
REPRESENTATIVE GRUENBERG raised the issue of continuing legal
education.
JOSEPH N. FAULHABER, Appointee to the Board of Governors of the
Alaska Bar, acknowledged members' comments.
REPRESENTATIVE GARA also remarked on the issue of possibly
instituting a graduated licensing fee for those that wish to
donate their services.
1:28:14 PM
MR. FAULHABER said that the Board of Governors of the Alaska Bar
has addressed that situation to some extent. He relayed that he
is championing the concept of a balanced budget. There are
three kinds of attorneys that could be forced to pay the costs
of a bar association: yesterday's attorneys, today's attorneys,
and tomorrow's attorneys. He said that in a mandatory bar
association, he would like to see the bar dues change every year
according to the budget - in other words, take the amount of the
budget and divide it by the number of attorneys who hold bar
membership to determine what bar dues for each member would be.
He opined that such a system would be fair and would keep the
general membership more in the loop.
[Chair McGuire turned the gavel over to Representative
Anderson.]
1:31:07 PM
REPRESENTATIVE GARA indicated he would give that concept
consideration.
MR. FAULHABER remarked, though, that such a concept would
conflict with the concept of providing a graduated licensing fee
for certain members and with the concept of possibly lowering
bar exam fees.
REPRESENTATIVE GARA acknowledged that the Alaska Bar Association
does need to balance its budget.
MR. FAULHABER said he would research the issues raised at this
hearing and provide feedback to the committee.
1:32:45 PM
REPRESENTATIVE KOTT made a motion to advance from committee the
nomination of Joseph N. Faulhaber as appointee to the Board of
Governors of the Alaska Bar. There being no objection, the
confirmation was advanced from the House Judiciary Standing
Committee.
SB 140 - BAN INTERNET SPYWARE
1:33:17 PM
REPRESENTATIVE ANDERSON announced that the next order of
business would be CS FOR SENATE BILL NO. 140(JUD), "An Act
relating to spyware and unsolicited Internet advertising."
DAVID STANCLIFF, Staff to Senator Gene Therriault, Alaska State
Legislature, sponsor, said on behalf of Senator Therriault that
SB 140 proposes to allow individuals and businesses recourse to
take action against those who are "putting things on and in
their computers" without permission and those items cause
damage. He relayed that the next speaker - Ben Edelman - is
considered an expert in the field [of computers] and has
testified as such before the courts.
1:34:40 PM
BENJAMIN G. EDELMAN explained that spyware has become quite a
serious problem. He elaborated:
There's a lot of software on a typical [personal
computer (PC)], maybe even on some of your PCs, that
isn't there because you want it or because you asked
for it, but rather it's there because some spyware
company found a way to sneak it on and to make money
from keeping it there. Some of these programs really
do bona fide spying - they track your name, your e-
mail address, your credit card number, your purchases,
and so forth. Others have a commercial purpose that
might at first glance seem less nefarious but that has
actually proven to be quite a bit more profitable.
They track what you do, and then ... show you extra
pop-up ads, often for competitors of the sites you ask
for.
It's this kind of spyware that today's bill seeks to
focus on. Why focus here? Well, the outright spying
- stealing credit card numbers and so forth - is
largely illegal under existing law. If you're
trafficking in someone's credit card numbers, you
better believe that eventually the law is going to
catch up with you and you're not going to like it.
Surely there's a need for ... more enforcement effort,
but I don't get the sense that new legislation is
really what's needed, here. On the other hand, as to
the advertising software, well, these programs are in
an odd, intermediate position. Some courts have said
that what they do is illegal, but others have actually
found it to be okay, [that] it's a kind of competition
[that] somehow the web naturally creates.
So there's a natural role for the legislature in
stepping up and giving an answer, preventing the slow
and costly litigation that has been present to date,
and beginning to give consumers some relief from this
unwanted software that at present has such
overpowering economic incentives to sneak onto users'
PCs. Just to be very concrete about what it is that
we're talking about, ... there's software that for
example might notice you're going to an Internet car
rental site ... [and will then] show you a pop-up ad
for a different car rental site. ... Well, maybe
that's the kind of competition that might be thought
to be fair or legitimate in the abstract, but the fact
is, you can make so much money by getting new [car
rental] customers that way that it seems like 100
different companies want to be in this business of
showing that kind of pop-up ad.
MR. EDELMAN continued:
It's the race to get on to your computer, to trick you
into clicking "yes" here or "yes" there or "okay"
somewhere else, that causes users' computers to get
truly overwhelmed and clogged up with all the
different programs and their respective pop-up ads.
Now, this bill comes in a very particular context,
with some legislation perhaps in the pipeline in
[Washington D.C.] and that in principle could preempt
your state legislation, so you shouldn't be under any
false illusions as to how long this will last. [The]
fact is, Congress might act and it would block your
legislation altogether; on the other hand, they might
remain paralyzed as they have been for ... the past
two years that they've been talking about this in
various modes.
Similarly there have been some bills passed in other
states, though I think there's a lot we can learn from
those bills and, as I see it at least, their
shortcomings. For example, a bill passed in
California last year has a regular laundry list of
different tactics that California says are
impermissible: you shouldn't take over someone's
computer and use it to send junk e-mail, you shouldn't
use someone's computer to install software and tell
them that it's been removed when it hasn't - no lying.
Well, so California gives a dozen-odd different things
that you shouldn't do, but oddly they omit the methods
used by the most prevalent programs; they omit the
sneaky installations, for example, and, most
importantly, they omit these pop-up adds that are the
core of the profit motive of these programs.
There may, nonetheless, be some objections to this
bill. Last year, when there was surprisingly similar
legislation in Utah, I was really just shocked by how
many technology companies actively spread
disinformation about what the bill would do. They
said it would ban anti-virus software and porn
filters. ... Of course, there was no legitimate basis
for any of their allegations. My sense ended up being
that software companies don't like the idea of
governments, especially state governments, telling
them how they can do business. Maybe we can see where
they're coming from - after all, for the past 20
years, no one's really regulated software companies,
they've gotten to do whatever they want - but we
certainly have [a] great history of consumer
protection legislation in this country and that's
entirely appropriate ... [for] the Internet too.
The Internet isn't free of laws just because it's
implemented in software. Another possible objection
to the bill is that it somehow grants excessive or
undue protections to trademark holders and that that
creates some kind of constitutional problem, trademark
being largely a federal concern. But as I read the
bill, I don't think that's actually right; what the
bill does is regulate unfair competition - not
trademark. And it's fully within a state's rights to
say that it is unfair competition to show ads in
particular ways. That's just the kind of thing all
kinds of unfair competition laws have been doing for
decades.
MR. EDELMAN concluded:
Finally, some folks will say that enforcement of the
bill is impossible, they'll say it's hard to find
these "adware" and spyware folks and when you find
them you can't do anything to them; I emphatically
disagree with that one. The folks making these pop-up
ads are big companies; they have offices in New York
and California - some of them may be in Alaska, though
I don't have any specifically in mind - they're easy
to find and there won't be any difficulty with
enforcement or even with collection in due course. So
I'll leave it at that, and I really am pleased to
answer any question that the committee may have.
1:40:51 PM
REPRESENTATIVE GARA noted that the interstate commerce clause
says that the state can regulate Alaskan companies and those who
know they're dealing with Alaskans, but cannot regulate those
who don't know they're dealing with Alaskans. He offered his
understanding that most companies responsible for infecting
computers with pop-up ads don't know what state those computers
are in, and asked whether the courts would consider that a
sufficient reason for prohibiting the regulation of those
companies.
MR. EDELMAN pointed out that regulation of spyware is quite
different because spyware does know where computers are located,
since it provides specific marketing to specific populations and
locations via Internet protocol (IP) addresses. Furthermore,
[Section 1 of CSSB 140(JUD), specifically proposed AS
45.45.792(b)(1)-(3)] speaks to this issue directly, essentially
saying that one can use spyware as long as it asks or otherwise
determines where the user is located and then doesn't display
the pop-up ad if that location is Alaska. Another point to
consider is that the advertising company is actually sending a
program that is going to stay on one's computer indefinitely and
thus the State of Alaska has a large nexus over that program
because it is then physically present in Alaska. In conclusion,
he suggested that the committee ought to get advice from
Legislative Legal and Research Services regarding possible
constitutional issues raised by SB 140 and then follow that
advice.
REPRESENTATIVE ANDERSON relayed that SB 140 would be set aside
until later in the meeting.
HB 269 - HAZARDOUS SUBSTANCE RELEASE LIABILITY
1:45:57 PM
REPRESENTATIVE ANDERSON announced that the next order of
business would be HOUSE BILL NO. 269, "An Act relating to
contribution actions relating to the release of a hazardous
substance; and providing for an effective date."
1:46:22 PM
REPRESENTATIVE JAY RAMRAS, Alaska State Legislature, sponsor,
said that HB 269 deals with fixing the uncertainty caused by the
U.S. Supreme Court's 2004 decision in the Cooper Industries,
Inc. v. Aviall Services, Inc. case. He went on to paraphrase
from his written opening remarks, which read in part [original
punctuation provided along with some formatting changes]:
The US Supreme Court found in the Aviall decision that
a responsible party who cleans up contaminated
property cannot bring a contribution action against
another potentially responsible party until such time
as the he or she has been sued by the state or federal
government, or has entered into a formal
administrative settlement of liability.
Alaska's hazardous substance remediation statutes are
modeled after the Federal Comprehensive Environmental
Response Compensation & Liability Act of 1980 (CERCLA)
and the Superfund Amendments and Reauthorization Act
of 1986 (SARA). Alaska's environmental cleanup
statutes are modeled after these federal laws.
The Aviall decision puts into question the rights of
Alaskan's who conduct voluntary cleanups on properties
contaminated by hazardous substances to undergo
contribution actions against other potentially
responsible parties.
Voluntary cleanups of contaminated sites form the vast
majority of environmental cleanups conducted in the
State of Alaska.
These voluntary cleanups allow the state to focus its
limited resources on monitoring responsible party
cleanup actions, instead of undertaking costly
administrative or judicial enforcement actions to
force cleanups, or undertaking cleanups at public
expense.
The right to contribution actions against other
potentially responsible parties creates an important
incentive for voluntary remediations, by allowing
responsible parties to undertake effective cleanups
themselves, and then being able to recover some of
those costs from other potentially responsible
parties, who fail to voluntarily undertake or assist
with the remediation.
The purpose of HB 269 is in response to the Aviall
decision. HB269 will clarify language in AS
46.03.822(j), thereby ensuring that responsible
parties who conduct voluntary cleanups may bring
contribution actions against other potentially
responsible parties.
HB 269 has the support of both the Department of
Environmental Conservation and the Governor's office.
This is an area of law where Alaska cannot afford to
have the common law decisions of the court out pace
our codified laws.
REPRESENTATIVE RAMRAS concluded by urging the committee to
support adopting HB 269 for the aforementioned reasons.
1:49:40 PM
BENJAMIN BROWN, Legislative Liaison, Office of the Commissioner,
Department of Environmental Conservation (DEC), relayed that the
DEC supports HB 269. He remarked that although there is not a
problem currently, there could be one in the future should the
Alaska Supreme Court interpret Alaska's version of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA) the way the federal statute was
interpreted. He emphasized that the worst-case scenario would
result in having to bring all individuals that were suspected of
being the responsible party for environmental situations into
court, in order for those parties to seek contribution from
other potentially responsible parties. He opined that this
could result in needlessly spending scarce resources,
particularly given that currently most responsible parties are
willing to start the cleanup process as early as possible. He
reiterated that the Department of Environmental Conservation
supports this legislation.
1:51:09 PM
GEORGE R. LYLE, Attorney at Law, Guess & Rudd, PC, stated that
he represents a number of private property owners who own
contaminated property, contaminated by previous owners, and are
now dealing with the [cleanup process]. He said that he and his
clients support this legislation. Mr. Lyle relayed that
notwithstanding Mr. Brown's view of this being a hypothetical
problem in the future, he has one client that has had a
significant settlement offer withdrawn as a result of the Aviall
decision because the party that withdrew the offer believed that
Mr. Lyle's client no longer had the right to bring a
contribution action, since the client had already been cleaning
up the site for a number of years. He added, "So this is a real
issue with real consequences to ... my clients, the current
property owners, who are the most easily targeted party for the
clean ups.
1:52:41 PM
BRECK TOSTEVIN, Assistant Attorney General, Environmental
Section, Civil Division (Anchorage), Department of Law (DOL),
said that he has represented the State of Alaska in connection
with oil and hazardous substance cleanups for the past 15 years.
He relayed that the Department of Law (DOL) supports HB 269, and
pointed out that the bill ensures that Alaska's system for
conducting environmental cleanups will continue as it has in the
past, but without unnecessary additional cost, enforcement
actions, or lawsuits. The bill does this, he said, by
clarifying the ability of persons who conduct voluntary cleanups
to recover their costs from other responsible parties, adding
that this right to recover cost from other responsible parties
is known as the right to contribution.
MR. TOSTEVIN said that HB 269 ensures that the right to
contribution exists even if the person conducting the cleanup
hasn't been sued by the state or by persons thus forcing cleanup
or the collection of damages. The bill would remove the
uncertainty and confusion that has been caused by the U.S.
Supreme Court's recent decision in Aviall wherein the U.S.
Supreme Court found that under the CERCLA, which is the federal
statute upon which Alaska's cleanup statute is patterned, a
responsible party could not bring a contribution action unless
it had been sued by a state government or the federal government
or entered into a formal administrative settlement with either
one.
MR. TOSTEVIN said that this requirement of being involved in a
lawsuit or formal settlement with the state, before a
responsible party can bring a contribution action, is not
consistent with what the Alaska Supreme Court has interpreted
with respect to Alaska's version of the CERCLA. In the 2001
Federal Deposit Insurance Corporation v. Laidlaw Transit, Inc.
case, the Alaska Supreme Court recognized that responsible
parties could bring a contribution action under [AS
46.03.8.22(j)] in the absence of a lawsuit by the state. The
court reasoned that the legislature didn't intend that there be
a requirement of a lawsuit before parties could bring a
contribution action.
MR. TOSTEVIN relayed that HB 269 would affirm the result in the
Laidlaw case, by allowing a contribution action after the
issuance of a potential liability determination by the DEC.
Furthermore, on page 3, lines 6-16, the bill defines what a
"potential liability determination" is in Section 3, and it does
that in terms of the DEC's existing practice. The
determinations would include, for example, a letter notifying
the person that he/she is a potentially responsible party.
Under current practice this is called a PRP (Potential
Responsible Party) letter and it is issued by the DEC's
Contaminated Sites Program. Another example would involve
providing notice of state interest to a person regarding a
release or threatened release; the DEC's Prevention & Emergency
Response Program issues these kinds of letters in catastrophic
spill situations pertaining to vessels and large land spills.
Another example of notice involves a request for site
characterization or cleanup, and these are also issued by the
DEC's Contaminated Sites Program.
MR. TOSTEVIN explained that upon receiving a potential liability
determination, if the person conducts a voluntary cleanup, then
that person would have contribution rights under [proposed AS
46.03.8.22(j)] against other persons who were liable under the
statute for that incident. In summary, HB 269 would clarify
these rights, and would encourage voluntary cleanups in the
future. To do otherwise, would really punish those who have
already cleaned up property in the past and would reward
recalcitrant parties who have failed to take action while others
have incurred the costs. Again, the Aviall decision has caused
great uncertainty and confusion and has resulted in situations
where people are afraid to step up and do a voluntary cleanup.
He relayed that he has had people asking the State to sue them,
and that's just a needless exercise when there are people who -
if they know they have the right to seek contribution against
others - are willing to voluntarily step up and proceed with the
cleanup process.
1:57:33 PM
REPRESENTATIVE GARA asked whether the bill might make it harder
for somebody to recover from a responsible party.
MR. TOSTEVIN indicated that it would not, and stated that HB 269
merely clarifies the right of contribution and recognizes what
the Alaska Supreme Court has already opined.
REPRESENTATIVE GARA surmised, then, that the intent of this bill
is to prevent the possible rescinding of the Alaska Supreme
Court's decision in light of what the U.S. Supreme Court did in
Aviall.
MR. TOSTEVIN concurred, reiterating that the concern is that the
Alaska Supreme Court might revisit it's ruling in light of
Aviall. He pointed out that by addressing this issue via
legislation ahead of time, that potential uncertainty is
prevented.
1:59:55 PM
REPRESENTATIVE DAHLSTROM moved to report HB 269 out of committee
with individual recommendations and the accompanying zero fiscal
notes. There being no objection, HB 269 was reported from the
House Judiciary Standing Committee.
HB 268 - OVERTAKING/PASSING STATIONARY VEHICLES
2:00:06 PM
REPRESENTATIVE ANDERSON announced that the next order of
business would be HOUSE BILL NO. 268, "An Act relating to
overtaking and passing certain stationary vehicles."
REPRESENTATIVE JAY RAMRAS, Alaska State Legislature, sponsor,
informed the committee that the genesis of HB 268 took place at
a dinner honoring former Lieutenant Governor Jack Coghill.
During that dinner a tow truck driver described the great peril
and risk to which tow truck drivers are subject to in non-police
calls. Research has indicated that nationwide, a tow truck
driver once a week is killed. The legislation also includes
animal control vehicles and their drivers, and seeks to amend
the "move over" [provisions of current law by including] tow
trucks when picking up a vehicle and animal control vehicles
when rescuing animals or removing their carcasses.
2:02:31 PM
REPRESENTATIVE ANDERSON, upon determining no one else wished to
testify, closed public testimony.
REPRESENTATIVE KOTT asked if tow trucks are currently required
to have emergency lights.
REPRESENTATIVE RAMRAS said he believes they are and that they
are actually equipped with such.
REPRESENTATIVE DAHLSTROM asked whether tow truck drivers are
required to use those lights.
REPRESENTATIVE RAMRAS indicated that he wasn't sure.
REPRESENTATIVE KOTT relayed his understanding that this
legislation only applies to those vehicles that have emergency
lights which are flashing. He questioned whether animal control
vehicles have emergency lights.
REPRESENTATIVE RAMRAS related that at the very minimum these
vehicles would have standard parking lights, which he assumed
would be turned on when an animal control vehicle is stopped on
the side of the road. He said he didn't know whether the lights
animal control vehicles have actually flash.
2:04:54 PM
REPRESENTATIVE GRUENBERG noted that his wife sits on the
Anchorage animal control board, and asked if the sponsor would
be amenable to changing the language "in the act of removing an
animal from the roadway" to "performing official functions".
REPRESENTATIVE RAMRAS returned to the earlier issue and related
that animal control vehicles have strobe lights. He then said
that he was amenable to any amendment that would improve the
legislation.
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 1, as follows:
Page 1, lines 6-7;
Delete "in the act of removing an animal from the
roadway"
Insert "performing official functions"
Page 1, lines 11-12;
Delete "in the act of removing an animal from the
roadway"
Insert "performing official functions"
REPRESENTATIVE ANDERSON asked whether there were any objections
to Conceptual Amendment 1. There being none, Conceptual
Amendment 1 was adopted.
2:07:03 PM
REPRESENTATIVE GARA asked whether HB 268 is creating a crime or
a violation.
REPRESENTATIVE RAMRAS specified that it would be a class A
misdemeanor.
REPRESENTATIVE GRUENBERG interjected that it would be a class A
misdemeanor only if someone is injured, otherwise it's an
infraction.
REPRESENTATIVE ANDERSON informed the committee that AS
28.35.185(b) currently reads:
(b) A person who violates this section is guilty
of
(1) a class A misdemeanor if personal injury
results from the person's failure to vacate the lane
or slow as required by this section;
(2) an infraction, under circumstances other than
in (1) of this subsection.
REPRESENTATIVE ANDERSON clarified that HB 268 would merely add
tow trucks and animal control vehicles to the list of vehicles
to which the above language applies.
REPRESENTATIVE RAMRAS highlighted that tow truck drivers perform
a very important function and free law enforcement to pursue
more serious issues.
REPRESENTATIVE DAHLSTROM asked whether the change proposed by
the bill imposes the same level of infraction as would apply if
a citizen hits a firefighter or a police officer while in the
line of duty.
REPRESENTATIVE RAMRAS commented that the public automatically
shows great deference to emergency vehicles. However, the same
degree of deference isn't applied to tow truck drivers or animal
control vehicles, and therefore those folks are placed at a
greater risk than public safety individuals.
2:11:33 PM
REPRESENTATIVE RAMRAS, in response to Representative Dahlstrom,
offered his belief that [tow truck drivers and animal control
officers] are subject to the same degree of risk as [public
safety personnel] when they stop on the side of the road. He
clarified that he didn't want to draw a distinction between
public safety personnel and other trained professionals who stop
on the side of the road. He indicated that it's common sense
and a sign of respect [to slow down and vacate the lane closest
to vehicle that's pulled over]. He concluded by characterizing
HB 268 as another "move over" bill.
REPRESENTATIVE DAHLSTROM asked whether a police officer or fire
fighter is already afforded the same protection.
REPRESENTATIVE RAMRAS replied yes.
2:13:37 PM
REPRESENTATIVE DAHLSTROM moved to report HB 268, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
268(JUD) was reported from the House Judiciary Standing
Committee.
REPRESENTATIVE KOTT offered his thought that this legislation
could potentially have a fiscal impact if the driver's license
manual has to be changed. He opined that individuals wouldn't
have a clue that animal control vehicles would be included in
the statute, and therefore he expressed the hope that that
information would be included in the manual.
REPRESENTATIVE ANDERSON posited that the driver's license manual
is reprinted every year that the legislature changes some aspect
of the laws to which it pertains. He further posited that he
has never seen a fiscal note for changing the driver's license
manual when the legislature has changed a traffic violation.
Therefore, he is assuming that the cost, although small, is
absorbed.
[CSHB 268(JUD) was reported from committee.]
HB 276 - BUSINESS LICENSE TOBACCO ENDORSEMENT
2:16:32 PM
REPRESENTATIVE ANDERSON announced that the next order of
business would be HOUSE BILL NO. 276, "An Act relating to
business license endorsements for tobacco products, to holders
of business license endorsements for tobacco products, and to
the employees and agents of holders of business license
endorsements for tobacco products."
[Representative Anderson returned the gavel to Chair McGuire.]
MICHAEL O'HARE, Staff to Representative Pete Kott, Alaska State
Legislature, sponsor, presented HB 276 on behalf of
Representative Kott. He said HB 276 addresses the amendment of
AS 43.70.075 regarding the sale of tobacco products to minors.
Basically, HB 276 increases financial penalties for non-
compliance by employees and employers who sell tobacco products;
removes the automatic suspension of tobacco endorsement
provision of current law; and increases the minimum fines, per
violation, for employers with education, monitoring and
enforcement programs in place - from the current levels of $300,
$500, $1000 and $2,500 - to $750, $1,000, $2,500 and $3,500
respectively. The bill also increases the minimum fines, per
violation, for employers without education, monitoring, and
enforcement programs - from the current levels of $300, $500,
$1,000 and $2,500 - to $500, $750, $1,500, and $2,500
respectively, as well as suspends the violator's tobacco
endorsement for a predetermined period of time.
MR. O'HARE said that HB 276 also makes an employee responsible
for the sale of tobacco products to minors by imposing separate
fines for those in violation. The bill allows qualifying
employers - employers with documented education, monitoring and
enforcement programs - to assert defenses and provide evidence
at administrative hearings of endorsement suspension regardless
of the disposition of a case against the violating employee.
Under current law, employers have little or no chance to present
their own cases if an employee pleads no contest or guilty.
This should encourage more employers to create education,
monitoring, and enforcement programs to prevent the sale of
tobacco products to minors. House Bill 276 would require
employees to sign a statement that they understand it is against
the law to sell tobacco to minors and that they will bear some
of the responsibility, personally, if they violate the law.
MR. O'HARE relayed that HB 276 creates a separate cause of
action against the employee for selling tobacco to minors and
imposes a fine of $300 to the employee. The state needs to
continue to hold employers responsible in order that they may
improve their own internal operations, and needs to put more
responsibility on those employees who either refuse to
participate in education programs or intentionally violate the
law. The state must also recognize responsible employers who
make strong internal efforts at curbing underage smoking in a
fair, balanced, and reasonable manner. These changes could also
make Alaska one of the strongest states in the country in terms
of employer-sponsored education, monitoring, and enforcement
programs, and could lead to even better federal compliance.
REPRESENTATIVE GARA asked whether, under the bill, a tobacco
seller could still lose his/her tobacco endorsement under
certain circumstances.
2:21:17 PM
MR. O'HARE reiterated that HB 276 removes the automatic
suspension provision while increasing the fines for employers
who have been documented to have education, monitoring, and
enforcement programs in place.
REPRESENTATIVE GARA asked for a comparison between current law
and the changes being proposed by HB 276 as they pertain to
losing a tobacco endorsement.
2:22:14 PM
CYNTHIA DRINKWATER, Assistant Attorney General, Commercial/Fair
Business Section, Civil Division (Anchorage), Department of Law
(DOL), relayed that she represents the Division of Occupational
Licensing in tobacco-endorsement matters. She explained that
currently there is a very strong incentive for vendors of
tobacco products to be very vigilant in the hiring, training,
and monitoring of their employees who sell tobacco, because,
under the current framework, if the holder of the tobacco
endorsement is convicted of selling to a minor, or if the
employees or agents - while acting within the scope of
employment or agency - are convicted of selling to minors, then
the holder of the endorsement is liable and there are mandatory
stepped penalties starting with a 20-day suspension and a $300
fine. Then, if there is a second conviction within a two-year
period, the fine is $500 and the suspension is 45 days. Further
convictions warrant higher fines and longer suspensions.
MS. DRINKWATER went on to explain that after conviction, once
the holder of an endorsement receives a notice of suspension,
there is an appeal process, but its currently a fairly limited
process. The legislative intent was to create a framework of
penalties wherein the outcome was known, determinant, and would
not require lengthy hearings. There was also the consideration
that the sanctions that were imposed - both civil penalties and
suspension periods - would essentially level the playing field
for different types of vendors. For example, for small vendors,
it is the fine that will get their attention, whereas for [large
vendors, it is the suspension of the endorsement that will get
their attention].
2:25:48 PM
DIANE CASTO, Section Manager, Prevention and Early Intervention
Section, Division of Behavioral Health, Department of Health and
Social Services (DHSS), relayed that the DHSS is in opposition
to HB 276 for a number of reasons, two of them being primary
reasons. She explained that the Tobacco Youth Education &
Enforcement Program falls under the purview of the Division of
Behavioral Health because the "sell rate" of tobacco products to
youth is directly linked to the federal Substance Abuse
Prevention And Treatment (SAPT) Block Grant made available
through the federal "Synar legislation." She went on to say:
The two primary reasons that our department ...
opposes this bill is that first and foremost, one of
our main goals is to promote healthy youth in the
state of Alaska, and obviously smoking is a huge
problem - all tobacco products are a problem - for
youth in the state of Alaska, and we believe that the
current system that we have ... has been very
effective in reducing access to tobacco products by
our youth. So we hope to continue the great progress
that we have made. ... The mandatory suspension of
tobacco endorsements began in July of [2001], which
was the beginning of fiscal year [FY] 02, and ...
prior to fiscal year 03 we [were] ... always in
violation of the federal 20 percent sell rate for
youth. And in 2003, after a full year of the new
regulation, we went down to a 10 percent sell rate for
youth, which put us below, at that time, the national
sell rate average. Last year ... we increased just a
little bit ..., up to almost 12 percent. ...
2:28:54 PM
REPRESENTATIVE GARA asked what "sell rate" refers to.
MS. CASTO said that the "Synar survey" is conducted between May
and September each year, and it involves a process of doing a
random sample poll of all of the businesses that have a business
license with a tobacco endorsement that are accessible to youth.
Last year the sample included just under 400 businesses. During
the aforementioned months, departmental tobacco investigators go
out with confidential youth informants to those businesses
selected via the random sample and attempt to buy cigarettes.
If the confidential youth informants are successful and
"complete a sell," those [sales] go into the "sell rate."
MS. CASTO, in response to a question, said only one attempted
buy occurs at each business. She reiterated that once the
mandatory suspension of the tobacco endorsement went into place,
the sell rates dropped significantly, and the DHSS believes that
that drop was a result of the possible consequence of losing
one's tobacco endorsement. Such a loss can cost businesses
money, much more money than the fines, which were not successful
in reducing sell rates. Additionally, there has been a
significant reduction, overall, in smoking among youth - the
rate dropped from 37 percent to 19 percent, which is lower than
the national rate. In conclusion, she said that the DHSS feels
very encouraged by this reduction and feels that the endorsement
suspension provision of current law has been a great part of
that reduction. She provided the committee with the DHSS's
tobacco vendor education packets.
REPRESENTATIVE COGHILL raised the issue of individual
responsibility.
MS. CASTO said:
We believe it's a mutual responsibility. Obviously it
is [the] responsibility of the employee to not sell,
and I think that through ... vendor education - if our
retailers are providing the vendor education as was
pointed out in the introduction of this bill - that
they do have responsibility and they should not be
selling. And there is a fine both for the employee
and that employer, as well as the tobacco
[endorsement] suspension.
2:33:56 PM
CHRISTIE GARBE, Chief Executive Officer (CEO), American Lung
Association of Alaska, relayed that she would be testifying in
opposition to HB 276 on behalf of the group, Alaskans for
Tobacco-Free Kids, an alliance of a number of health-focused
nonprofit organizations. She indicated that Alaskans for
Tobacco-Free Kids believes that HB 276 will effectively weaken
the enforcement component - the cornerstone - of the statewide
comprehensive tobacco control program, and that it strikes at
the heart of efforts to deter kids from smoking.
MS. GARBE said that Alaskans for Tobacco-Free Kids would remind
members of the amazing progress made in the reduction of youth
tobacco consumption as measured by the Youth Risk Behavior
Survey (YRBS), which shows a 50 percent reduction in cigarette
smoking among Alaska high school students from 1995 to 2003.
Another YRBS statistic indicates that Alaska students who
reported purchasing cigarettes at a store also dropped 50
percent in that same time period. She said that the bill will,
for all practical purposes, eliminate the ability to take away
vendors' rights to sell tobacco. Without this ability there
will be no financial incentive on the part of the vendor - the
party profiting from the sale of tobacco - to comply with
current law. In fact, history has shown that suspension has
been a necessary component of enforcement.
MS. GARBE opined that companies which have the privilege of
holding a license to sell tobacco - a legal yet deadly and
addictive product - must also bear the serious responsibility
for selling this product to Alaska's children. The company is
the entity making the profit from the sales of tobacco and
therefore it is the company that must bear the responsibility to
hire capable, responsible, trainable, competent employees who
follow the policy of not selling tobacco to those under the age
of 19. It just doesn't seem that difficult a rule for
management to train employees to follow, she opined. In
conclusion, she asked the committee not to fix something that is
not broken, and characterized "this proposal" as a giant step
backward for efforts to prevent youth tobacco addiction; the
current law has effectively done the job of reducing tobacco
sales to youth and therefore does not need any further changes.
2:37:12 PM
MS. GARBE, in response to a question, offered her understanding
that under the bill, vendors would have the ability to put in
place an educational program of some sort that they consider to
be adequate and then, once they have done that, they will be
immune from suspension of their tobacco endorsement.
2:38:10 PM
MIKE ELERDING, Northern Sales Company of Alaska, Inc., relayed
that Alaska's tobacco industry supports HB 276 because it
believes that the bill corrects a deficiency in current law
while continuing to provide enforcement officials with the
powerful tools necessary to assist them in keeping tobacco out
of the hands of children. He offered the industry's belief that
Alaska retailers, in partnership with the State, are doing a
good job of keeping tobacco out of the hands of children. The
results of the Synar surveys indicate that the state has made
huge progress in becoming and remaining compliant with federal
guidelines. Nationally, for 2003 and 2004, Alaska ranks in the
top one-third of all states for "Synar scores."
MR. ELERDING offered his belief that HB 276 will continue to
provide the state with the tools to penalize non-conforming
retailers while not unjustly punishing the retailers that are
doing everything within their power to comply with state law.
The problem with the current law, he opined, is that the penalty
range does not distinguish between different retail
classifications or size of retail operations. As a consequence,
the penalty for a violation impacts different businesses
differently. For example, if a business sells a large volume of
tobacco products - or sells only tobacco products - the
suspension of its tobacco endorsement is going to have a much
more severe impact on it than would an endorsement suspension on
a business that sold very little in the way of tobacco products.
Furthermore, license suspensions are currently mandatory and do
not take into account any mitigating circumstances such as
whether the retailer had a training program in place.
MR. ELERDING concluded by offering his understanding that HB 276
changes the license suspension phase and continues to provide
the DHSS with the right to impose license suspensions but only
after initiating a proceeding that examines a retailer's efforts
to comply with state law regarding the prohibition of tobacco
sales to minors. This change is significant because it provides
retailers that have an effective training program in place with
an affirmative defense and also provides retailers the
opportunity to have a hearing before the imposition of a license
suspension. He said, "We support HB 276 and would like to see
the committee pass this bill out."
[Following was a brief discussion regarding a possible amendment
Mr. Elerding suggested for a different bill.]
2:46:29 PM
STEVE RUSH, Holiday Stationstores, Inc., after mentioning that
Holiday Stationstores owns and operates approximately 30
convenience stores in Alaska, said that Holiday Stationstores is
in favor of HB 276 and believes that it should be enacted for a
number of reasons. He offered his belief that the bill
substantially stiffens the penalties for selling tobacco to
minors - those fines being the highest he's ever encountered -
and also encourages employers to implement the aforementioned
education, monitoring, and enforcement programs. Current law,
he opined, provides little incentive for employers to train
employees, since [all vendors] are treated the same. He said
that Holiday Stationstores has a very comprehensive, proprietary
computer-based training program, and is quite proud of that
program; however, current law does nothing to reward Holiday
Stationstores for its efforts to curb tobacco purchases by
minors.
MR. RUSH offered his belief that HB 276 will also establish a
more predictable and fair due process for employers. Current
law does provide a very streamlined process for going after a
license holder, but it leaves a license holder with no defense
when an employee sells tobacco to a minor and pleads guilty or
no contest; in such cases the employer is held strictly liable,
pays the fine, and faces the 20-day suspension of his/her
tobacco endorsement. He opined that this is unfair; instead, an
employer ought to be able to offer up all of his/her efforts
towards compliance as part of a defense. Additionally, the bill
would encourage employees to be more diligent in checking IDs
when selling tobacco, because it creates a civil penalty for the
employee who sells tobacco to a minor, and the employee would be
required to sign a statement acknowledging that it is against
the law to sell tobacco to a minor and thus he/she would bear
some of the responsibility for violating the law.
MR. RUSH acknowledged that there is some concern that removal of
the current suspension provision might jeopardize "Synar
funding," but offered his belief that such has not been borne
out by empirical evidence from California, Oregon, and
Washington. Thus, he surmised, removal of the current
suspension provision will have no effect on federal funding. He
concluded by asking the committee to pass the bill.
2:51:44 PM
DAN RILEY, Vice President, Government Relations, Tesoro Refining
and Marketing Company ("Tesoro"), relayed that he would be
speaking in support of HB 276. Tesoro, he explained, operates
32 convenience stores in Alaska and is a strong advocate of
preventing the selling of tobacco products to minors. He
elaborated:
We have training programs in place to ensure our
employees are aware of their responsibilities not to
sell tobacco products to minors. All of our
convenience store employees are required to complete a
"new employee" orientation when they are hired. That
employee orientation program contains a section on
techniques for alcohol management and specific lessons
on restricted products. The training covers, in
detail, procedures regarding the sale of restricted
products, and employees are required to pass a
validation test with a score of 100 percent at the
conclusion of their training. As many of you know,
Tesoro started out in Alaska; we now operate
convenience stores in 16 states across the western
United States. I can tell you that Alaska is the most
stringent, regarding tobacco sales laws, of any of the
states that we operate in.
The proposed bill before you will allow Alaska to
continue to have the toughest penalties of any state,
and will [ensure] that Alaska is the country's leader
in terms of [employer-sponsored] education,
monitoring, and enforcement programs. Tesoro supports
the provisions that stiffen penalties for non-
compliance; we also support the provision that will
allow ... employers with aggressive internal education
and monitoring and enforcement programs - like we
believe we have - to take credit for those programs as
mitigating factors in administrative hearings. We
believe the bill establishes a more predictable and
fair due process, and encourages employees to be more
diligent in checking IDs at the point of sale. I
respectfully request that you support HB 276, and I
would be happy to answer any questions.
2:54:07 PM
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, relayed that HB 276 would be held over.
SB 140 - BAN INTERNET SPYWARE
2:54:19 PM
CHAIR McGUIRE announced that the committee would resume the
hearing on CS FOR SENATE BILL NO. 140(JUD), "An Act relating to
spyware and unsolicited Internet advertising."
REPRESENTATIVE KOTT noted that the bill's presentation occurred
earlier in the meeting, characterized the SB 140 as a good bill,
and said he would support reporting it from committee.
REPRESENTATIVE COGHILL indicated that he would be doing further
research on the issues raised by SB 140.
2:56:30 PM
REPRESENTATIVE GRUENBERG noted that he'd missed the earlier
testimony, and asked for an explanation of the bill.
DAVID STANCLIFF, Staff to Senator Gene Therriault, Alaska State
Legislature, sponsor, said on behalf of Senator Therriault that
SB 140 is modeled after legislation in other states,
particularly Utah, and is aimed directly at those companies that
violate fair trade practices by inserting information into one's
computer without one's knowledge. He relayed that a recent
search for spyware on legislative computers found 685 spyware
programs. The bill allows a person or business to seek civil
recourse for damages caused by spyware, and allows the attorney
general to pursue violators under existing statutes. He noted
that Legislative Legal and Research Services has provided a memo
to the effect that SB 140 does not violate the federal commerce
clause.
REPRESENTATIVE GRUENBERG surmised, then, that SB 140 addresses
pop-up ads.
MR. STANCLIFF concurred, adding that spyware invades computers
and is being used by major companies to influence commerce.
2:59:28 PM
REPRESENTATIVE ANDERSON moved to report CSSB 140(JUD) out of
committee with individual recommendations and the accompanying
zero fiscal notes. There being no objection, CSSB 140(JUD) was
reported from the House Judiciary Standing Committee.
SB 36 - ABSENTEE BALLOTS
2:59:46 PM
CHAIR McGUIRE announced that the final order of business would
be CS FOR SENATE BILL NO. 36(JUD), "An Act relating to absentee
ballots." [Before the committee was HCS CSSB 36(STA).]
DAVID STANCLIFF, Staff to Senator Gene Therriault, Alaska State
Legislature, sponsor, relayed on behalf of Senator Therriault
that during last year's election period, some irregularities
occurred regarding absentee ballot applications wherein some
applications were held back, were made viewable by the public,
were changed after being signed by the voter, or were altered
such that they requested personal information from the voter
that the Division of Elections doesn't require. Because of
these irregularities, SB 36 proposes to allow the division to
authorize the application form that will be used, and proposes
to require that applications follow a direct route between the
applicant and the division. Furthermore, he remarked, intent
language added in the House State Affairs Standing Committee
ought to ensure that friends and family members of the applicant
will be allowed to deliver applications to either some form of
mail delivery service or directly to the division. In
conclusion, he said the bill has had widespread, bipartisan
support, and that it is not the sponsor's intent to point
fingers at any particular political party.
3:02:46 PM
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on SB 36.
REPRESENTATIVE GARA distributed an amendment pertaining to the
issue of pre-marking a party affiliation on an absentee ballot
application, and said he might offer that amendment on the House
floor. He then referred to page 2, line 7, and said he wants to
ensure that registrars will also be allowed to deliver absentee
ballot applications to the division.
MR. STANCLIFF indicated that registrars are considered by
Division of Elections to already be acting on its behalf.
REPRESENTATIVE GARA asked whether "voter" is statutorily defined
as also including a registrar.
MR. STANCLIFF indicated that he would research that issue before
the bill is heard on the House floor.
REPRESENTATIVE GARA said he would like to offer a conditional
conceptual amendment such that the bill would refer to "the
voter or authorized representative", if it is deemed by the
drafter that such language is necessary.
MR. STANCLIFF noted that the bill authorizes the division to
develop and institute regulations to implement the bill, and
suggested that Representative Gara's concern will be addressed
via regulations.
3:05:57 PM
REPRESENTATIVE GARA indicated that he would instead have his
conditional conceptual amendment change the bill such that it
would refer to "voter registrar or authorized representative".
REPRESENTATIVE GRUENBERG noted that the drafter, via a
memorandum dated 3/17/05, has recommended that the intent
language be placed into the bill itself rather than simply in an
intent section, and asked Mr. Stancliff whether he would have
any objection to such a change.
MR. STANCLIFF offered his belief such a change would be
unobjectionable to the sponsor.
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 1, to adopt the drafter's suggestion of placing the
intent language currently in Section 1 into a section of the
bill that is to be codified; such a change would eliminate what
is currently Section 1. There being no objection, Conceptual
Amendment 1 was adopted.
3:08:01 PM
REPRESENTATIVE GARA made a motion to adopt Amendment 2, to
insert after "voter" on page 2, line 7, the words ", registrar
or authorized representative".
CHAIR McGUIRE objected for the purpose of discussion.
MR. STANCLIFF offered his belief that the sponsor would consider
adding "registrar" to the bill to be an acceptable change, but
not adding "authorized representative". He reiterated his
understanding that language authorizing registrars to deliver
absentee ballots to the division would not be necessary because
they are already considered to be part of the division.
REPRESENTATIVE GARA withdrew Amendment 2.
REPRESENTATIVE GARA made a motion to adopt a new Amendment 2, to
insert after "voter" on page 2, line 7, the words "or
registrar".
MR. STANCLIFF indicated that he had no objection to new
Amendment 2.
CHAIR McGUIRE asked whether there were any objections to new
Amendment 2. There being none, new Amendment 2 was adopted.
3:09:38 PM
REPRESENTATIVE GARA said he is not sure that he agrees with the
change proposed by Section 3 of the bill - changing the deadline
by which the division must receive a request for an absentee
ballot from seven days to ten days - adding that he does not
want to make it harder for people to get an absentee ballot.
REPRESENTATIVE GARA made a motion to adopt [Amendment 3], to
delete Section 3 of the bill.
MR. STANCLIFF explained that the change proposed by Section 3 of
the bill was requested by the Division of Elections because it
wants more time in which to fully process absentee ballot
requests, particularly given that there were a large number of
such requests last year. Without that change, the Division of
Elections has predicted, more people would have to be hired and
employees would have to work overtime in order process all the
requests. Therefore it is a policy call as to whether the
legislature wants to give the division more time or would prefer
the division to hire more staff and have everyone working
overtime.
REPRESENTATIVE COGHILL said he would be objecting [to Amendment
3], and indicated that giving the division more time would be
his preferred choice, particularly given how much easier it is
these days for people to vote absentee. The earlier deadline
will ensure that all applications are processed in a timely and
fair manner.
3:12:37 PM
LAURA A. GLAISER, Director, Central Office, Division Of
Elections, Office of the Lieutenant Governor, confirmed that the
division had asked for the extension proposed by Section 3 of
the bill. During the last election, she explained, the division
saw an overwhelming increase in absentee ballot applications,
and now considers the seven-day deadline to be insufficient,
particularly given that once an application is received by a
regional office of the division, it must be checked in there and
then sent to the main office in Juneau for final processing.
This process alone can take up to two or three days, leaving
only four or five days for the applicant to receive, complete,
and return the ballot. The success rate for absentee voters to
even get a ballot when their request is received by the division
seven days before election day is [very small]; with a seven-day
deadline, the state is being set up for failure and the voters
are being set up to possibly not even receive a ballot.
MS. GLAISER relayed that the division's interest in requesting
the change proposed by Section 3 was to ensure that voters get
an absentee ballot. At one point, the division - at the
suggestion of experienced staff - considered asking for the
deadline to be changed to two weeks, but the lieutenant governor
said that deadline was too far out, and so the compromise was a
ten-day deadline. She opined that Alaskans have many
opportunities to vote, and the change proposed by Section 3 of
the bill is the best way to ensure that an absentee ballot
application sent by mail will result in the ballot being
received by the voter in a timely manner.
REPRESENTATIVE COGHILL opined that in fairness to the voter,
particularly those serving in the military, he is in favor of
[the change proposed in the bill].
REPRESENTATIVE GRUENBERG offered his belief that the change
proposed by Section 3 of the bill will have the opposite effect
of what the division intends. He opined that military personnel
should be allowed to submit a request for an absentee ballot as
close as possible to the day of the election.
3:17:57 PM
REPRESENTATIVE COGHILL acknowledged that point. He then asked
what would happen if an application is received after the
deadline.
MS. GLAISER said that the division would not process it.
REPRESENTATIVE COGHILL said his concern is that such ballots
wouldn't be counted. He said he is interested in ensuring that
the division is able to handle the absentee ballot application
process.
3:20:12 PM
MS. GLAISER offered her recollection that absentee ballot
applications can be sent in beginning January 1 of the year the
election takes place. She noted that "shut ins" are afforded a
"special needs" voting process, and that military units have
voting officers who are charged with making sure that military
personnel are aware of the timelines pertaining to voting
absentee; additionally, military personnel have their own
applications and can become Uniformed and Overseas Citizens
Absentee Voting Act (UOCAVA) voters. She also noted that last
year the division received a request to set up early voting
sites in certain military bases a few days prior to deployment.
MS. GLAISER opined that the voting process isn't so narrow as to
preclude one from choosing to vote absentee via mail, but
acknowledged that last year many waited until the last minute to
apply for an absentee ballot. She pointed out that last year,
there were people who did not receive their absentee ballot in
time even though division personnel worked up until the last
minute attempting to ensure that all absentee ballot requests
were filled.
3:22:40 PM
CHAIR McGUIRE acknowledged that with a seven-day deadline, there
is the likelihood that voters won't get the chance to get their
absentee ballot returned to the division in time, and pointed
out that absentee ballots from military personnel stationed
oversees might be further delayed.
MS. GLAISER, in response to a question, said that last year, the
division attempted to get absentee ballots sent out up to just a
few days prior to the election, but still got complaints from
people who didn't receive their ballot in time even though
division personnel worked day and night in an attempt to fill
requests. In response to another question, she indicated that
as election day drew near, when it became clear that absentee
ballots being sent out so late that they were not going to reach
the voters in time, division personnel resorted to calling
voters in order to facilitate voting via fax.
3:25:43 PM
REPRESENTATIVE GRUENBERG offered his understanding that one can
vote up to midnight on election day, and that a vote must be
counted as long as the ballot is received by the applicant by
that time.
CHAIR McGUIRE pointed out that the director of the division has
been attempting to explain that the current seven-day deadline
is not sufficient, that the division needs more time in which to
ensure that those applying for absentee ballots receive their
ballots in time to have their vote counted, and that a ten-day
deadline will afford the division a better chance of success.
REPRESENTATIVE GRUENBERG concurred, but remarked that there are
those who would receive a ballot in time under the current
deadline.
CHAIR McGUIRE acknowledged that point, but mentioned that
regardless of what the deadline is, there are those who, for one
reason or another, will still not receive an absentee ballot in
time to have their vote counted.
3:28:23 PM
REPRESENTATIVE GARA indicated that his hope is that if Amendment
3 is adopted and the seven-day deadline remains in place, that
the division will hire the extra staff needed to ensure that
applicants get their absentee ballots in time.
MS. GLAISER pointed out that the division doesn't have the power
of appropriation and therefore cannot ensure that the funding
for hiring extra staff would be available; if, however, the
funding does end up being available, the division would hire the
staff needed. She mentioned that last year no one at the
division expected the 1,300 percent increase in federal oversees
ballots. The division is asking that the deadline be extended
to ten days in order to ensure that more absentee ballots are
received in time. Meanwhile the division will also be looking
at ways to address the issue of absentee ballots. In
conclusion, she reiterated that she believes the proposed ten-
day deadline will ensure that the most voters get their ballots
in a timely manner and can thereby have their votes counted.
REPRESENTATIVE GARA opined that if Amendment 3 is adopted, it
will be the legislature's duty to provide adequate funding to
the division.
3:31:10 PM
A roll call vote was taken. Representatives Gruenberg and Gara
voted in favor of Amendment 3. Representatives McGuire,
Anderson, Coghill, Kott, and Dahlstrom voted against it.
Therefore, Amendment 3 failed by a vote of 2-5.
3:31:38 PM
REPRESENTATIVE DAHLSTROM moved to report HCS CSSB 36(STA), as
amended, out of committee with individual recommendations and
the accompanying fiscal note. There being no objection, HCS
CSSB 36(JUD) was reported from the House Judiciary Standing
Committee.
ADJOURNMENT
3:32:55 PM
The House Judiciary Standing Committee was recessed at 3:32 p.m.
to a call of the chair. [The meeting was never reconvened.]