HOUSE JUDICIARY STANDING COMMITTEE May 11, 1999 1:17 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Joe Green Representative Norman Rokeberg Representative Jeannette James Representative Lisa Murkowski Representative Eric Croft Representative Beth Kerttula MEMBERS ABSENT All members present COMMITTEE CALENDAR CS FOR SENATE BILL NO. 45(FIN) am "An Act providing that a person who grants certain conservation easements to the state or a municipality that provide public access for recreational purposes and the grantee of the easement are immune from tort liability, other than gross negligence or reckless or intentional misconduct, for damages to a person who uses the easement under certain conditions; relating to the vacation by the state or a municipality of rights-of-way acquired by the state under former 43 U.S.C. 932; and providing for an effective date." - MOVED CSSB 45(FIN) am OUT OF COMMITTEE HOUSE JOINT RESOLUTION NO. 23 Proposing amendments to the Constitution of the State of Alaska relating to the community development fund, the permanent fund, and the budget reserve fund. - MOVED CSHJR 23(CRA) OUT OF COMMITTEE HOUSE BILL NO. 213 "An Act relating to the medical use of marijuana; and providing for an effective date." - HEARD AND HELD (* First public hearing) PREVIOUS ACTION BILL: SB 45 SHORT TITLE: LAND OWNER IMMUNITY/ RT-OF-WAY VACATION SPONSOR(S): SENATOR(S) HALFORD, Pearce, Taylor; REPRESENTATIVE(S) Dyson Jrn-Date Jrn-Page Action 1/25/99 80 (S) READ THE FIRST TIME - REFERRAL(S) 1/25/99 80 (S) JUD, FIN 4/14/99 (S) JUD AT 1:30 PM BELTZ 211 4/14/99 (S) MOVED CS (JUD) OUT OF COMMITTEE 4/19/99 (S) JUD AT 1:30 PM BELTZ 211 4/19/99 (S) MINUTE(JUD) 4/21/99 982 (S) JUD RPT CS 2DP 1NR NEW TITLE 4/21/99 982 (S) DP: TAYLOR, HALFORD; NR: DONLEY 4/21/99 982 (S) ZERO FISCAL NOTES (DOT, DNR) 4/28/99 (S) FIN AT 9:00 AM SENATE FINANCE 532 4/28/99 (S) REPORTED CS (FIN) OUT OF COMMITTEE 4/28/99 1148 (S) FIN RPT FORTHCOMING CS 2DP 5NR 1AM 4/29/99 (S) RLS AT 11:50 AM FAHRENKAMP 203 4/29/99 (S) MINUTE(RLS) 4/29/99 1168 (S) FIN CS RECEIVED NEW TITLE 4/28/99 1148 (S) DP: TORGERSON, PETE KELLY; NR: PARNELL, 4/28/99 1148 (S) PHILLIPS,ADAMS, DONLEY, WILKEN; AM:GREEN 4/28/99 1149 (S) PREVIOUS ZERO FNS (DNR, DOT) 5/03/99 1203 (S) RULES TO CALENDAR AND 1 OR 5/3/99 5/03/99 1206 (S) READ THE SECOND TIME 5/03/99 1206 (S) FIN CS ADOPTED UNAN CONSENT 5/03/99 1206 (S) AM NO 1 OFFERED BY HALFORD 5/03/99 1206 (S) AM NO 1 ADOPTED UNAN CONSENT 5/03/99 1207 (S) ADVANCED TO THIRD READING UNAN CONSENT 5/03/99 1207 (S) READ THE THIRD TIME CSSB 45(FIN) AM 5/03/99 1207 (S) PASSED Y20 N- 5/03/99 1208 (S) EFFECTIVE DATE(S) SAME AS PASSAGE 5/03/99 1207 (S) COSPONSOR(S): PEARCE, TAYLOR 5/03/99 1209 (S) TRANSMITTED TO (H) 5/04/99 1152 (H) READ THE FIRST TIME - REFERRAL(S) 5/04/99 1152 (H) JUDICIARY 5/04/99 1170 (H) CROSS SPONSOR(S): DYSON 5/11/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HJR 23 SHORT TITLE: COMMUNITY DEVELOP FUND/PFD/BUD RESERVE SPONSOR(S): REPRESENTATIVES(S) DAVIS Jrn-Date Jrn-Page Action 3/05/99 366 (H) READ THE FIRST TIME - REFERRAL(S) 3/05/99 366 (H) CRA, JUDICIARY, FINANCE 4/08/99 (H) CRA AT 8:00 AM CAPITOL 124 4/08/99 (H) HEARD AND HELD 4/08/99 (H) MINUTE(CRA) 5/04/99 (H) CRA AT 8:00 AM CAPITOL 124 5/04/99 (H) MOVED CSHJR 23(CRA) OUT OF COMMITTEE 5/04/99 1153 (H) CRA RPT CS(CRA) 2DP 3NR 5/04/99 1153 (H) DP: MORGAN, MURKOWSKI; NR: DYSON, 5/04/99 1153 (H) HARRIS, HALCRO 5/04/99 1153 (H) FISCAL NOTE (GOV) 5/04/99 1153 (H) ZERO FISCAL NOTE (DCRA) 5/04/99 1153 (H) REFERRED TO JUDICIARY 5/11/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 213 SHORT TITLE: MEDICAL USE OF MARIJUANA SPONSOR(S): HEALTH, EDUCATION & SOCIAL SERVICES Jrn-Date Jrn-Page Action 4/27/99 1026 (H) READ THE FIRST TIME - REFERRAL(S) 4/27/99 1027 (H) HES, JUD 5/03/99 (H) HES AT 5:00 PM CAPITOL 106 5/03/99 (H) HEARD AND HELD 5/04/99 (H) HES AT 3:00 PM CAPITOL 106 5/04/99 (H) MOVED CSHB 213(HES) OUT OF COMMITTEE 5/05/99 1177 (H) HES RPT CS(HES) 3NR 2AM 5/05/99 1177 (H) NR: DYSON, WHITAKER, BRICE; AM: COGHILL, 5/05/99 1177 (H) KEMPLEN 5/05/99 1177 (H) FISCAL NOTE (DHSS) 5/05/99 1177 (H) ZERO FISCAL NOTE (DCED) 5/05/99 1177 (H) REFERRED TO JUDICIARY 5/11/99 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER BRETT HUBER, Legislative Assistant to Senator Rick Halford Alaska State Legislature Capitol Building, Room 121 Juneau, Alaska 99801 Telephone: (907) 465-4958 POSITION STATEMENT: Presented CSSB 45(FIN) am on behalf of sponsor. DICK BISHOP Alaska Outdoor Council P.O. Box 73902 Fairbanks, Alaska 99707 Telephone: (907) 455-4262 POSITION STATEMENT: Urged passage of CSSB 45(FIN) am, although prefers original SB 45. TIM KRUG, Planner City of Wasilla 290 East Herning Avenue Wasilla, Alaska 99654 Telephone: (907) 373-9052 POSITION STATEMENT: Testified in support of SB 45. REPRESENTATIVE DAVIS Alaska State Legislature Capitol Building, Room 513 Juneau, Alaska 99801 Telephone: (907) 465-2693 POSITION STATEMENT: Testified as sponsor of HJR 23. DEB DAVIDSON, Legislative Administrative Assistant to Representative Davis Alaska State Legislature Capitol Building, Room 513 Juneau, Alaska 99801 Telephone: (907) 465-2693 POSITION STATEMENT: Answered questions regarding HJR 23. KEVIN RITCHIE, Alaska Municipal League Alaska Conference of Mayors 217 2nd Street Juneau, Alaska 99801 Telephone: (907) 586-1325 POSITION STATEMENT: Indicated support of HJR 23. REPRESENTATIVE DYSON Alaska State Legislature Capitol Building, Room 104 Juneau, Alaska 99801 Telephone: (907) 465-2199 POSITION STATEMENT: Testified as sponsor of HB 213. MIKE PAULEY, Legislative Assistant to Senator Leman Alaska State Legislature Capitol Building, Room 115 Juneau, Alaska 99801 Telephone: (907) 465-2095 POSITION STATEMENT: Discussed HB 213 and answered questions. DEL SMITH, Deputy Commissioner Office of the Commissioner Department of Public Safety P.O. Box 11200 Juneau, Alaska 99811 Telephone: (907) 465-4322 POSITION STATEMENT: Testified in support of HB 213. DEAN GUANELI, Chief Assistant Attorney General Legal Services Section - Juneau Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811 Telephone: (907) 465-3428 POSITION STATEMENT: Testified in support of HB 213. BILL KOZLOWSKI 713 Fifth Street Juneau, Alaska 99801 Telephone: (907) 586-1806 POSITION STATEMENT: Testified against the mandatory registration in HB 213. ELMER LINDSTROM, Special Assistant Office of the Commissioner Department of Health and Social Services P.O. Box 110601 Juneau, Alaska 99811 Telephone: (907) 465-1613 POSITION STATEMENT: Testified on HB 213. AL ZANGRI, Chief Vital Statistics Division of Public Health Department of Health and Social Services P.O. Box 110675 Juneau, Alaska 99811 Telephone: (907) 465-3392 POSITION STATEMENT: Answered questions on HB 213. DAVID FINKELSTEIN Alaskans for Medical Marijuana P.O. Box 102320 Anchorage, Alaska 99510 Telephone: (907) 277-2567 POSITION STATEMENT: Testified against HB 213. ACTION NARRATIVE TAPE 99-63, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 1:17 p.m. Members present at the call to order were Representatives Kott, Green, Rokeberg, Croft and Kerttula. Representatives Murkowski and James arrived at 1:22 p.m. and 1:23 p.m., respectively. CSSB 45(FIN) am - LAND OWNER IMMUNITY/ RT-OF-WAY VACATION CHAIRMAN KOTT announced that the first item of business is CS for Senate Bill No. 45(FIN) am, "An Act providing that a person who grants certain conservation easements to the state or a municipality that provide public access for recreational purposes and the grantee of the easement are immune from tort liability, other than gross negligence or reckless or intentional misconduct, for damages to a person who uses the easement under certain conditions; relating to the vacation by the state or a municipality of rights-of-way acquired by the state under former 43 U.S.C. 932; and providing for an effective date." Number 0088 BRETT HUBER, Legislative Assistant to Senator Rick Halford, Alaska State Legislature, came forward on behalf of the prime sponsor. He read in part from the sponsor statement, noting that SB 45 was introduced in response to a desire to preserve and expand recreational access for both Alaskans and visitors to the state, to whom the ability to access lands for purposes of skiing, hunting, fishing, snow machining and numerous other outdoor activities is very important. He said the potential for liability and litigation for private land owners who allow public access to their lands for recreational purposes has created pressure to further restrict entry. It is also proven to be a disincentive to the establishment of new recreational opportunities, and it is a significant hurdle to the establishment of new trail systems. MR. HUBER told members that promoting recreational opportunities, by establishing additional trail systems, has become a priority for a number of groups and organizations around the state. The sponsor has received requests and/or support for this legislation from numerous entities, including the following: the Department of Natural Resources (DNR), Division of Parks and Outdoor Recreation ("State Parks"); the Municipality of Anchorage; the Anchorage Economic Development Corporation; the City of Wasilla; the Wasilla, Palmer, Chugiak, Eagle River, Fairbanks and state Chambers of Commerce; numerous snow machine associations; the Alaska [Boaters'] Association; and the Alaska Outdoor Council. Mr. Huber expressed belief that representatives of many of these organizations had either provided written testimony or would provide it that day. MR. HUBER specified that CSSB 45(FIN) am provides limited immunity to landowners when they grant the conservation easement to the state or municipality, which allows public access to the easement for recreational purposes, providing that there was no compensation paid for the access or use. The same limited immunity is granted to the state or municipality that accepts the conservation easement. In addition, the bill makes a technical correction to the statutes governing vacation of RS 2477 [federal Revised Statute 2477] and section line rights-of-way and easements that were granted under former 43 U.S.C. 932. The bill also provides concise direction in Title 29, the statutes pertaining to local governments, that is reflective of the current procedures for easement vacation existing in Title 19. Number 0275 REPRESENTATIVE CROFT commented that it seems to be appropriate, particularly for free rights-of-way. However, he expressed concern about specific improved sections. If an owner allowed access to a tramway or railroad line, for example, should there be a different standard? MR. HUBER replied that although AS 09.65.200 currently deals with limited immunity on unimproved land, it doesn't take in improved land. In many municipal areas - on the Kenai Peninsula, as well as in and around Anchorage, the Matanuska-Susitna area and Fairbanks - towns have grown up around trails that once existed on unimproved land. Although a trail and its use may not have changed, the classification of the land as "improved" or "unimproved" may have changed. MR. HUBER said he believes a significant difference, if talking about something like the use of a tramway, a railroad, or a ski area, is whether the owner is compensated for use of the easement or it is free. He indicated that in working with the Senate Judiciary Committee, the sponsor tried to limit it to a conservation easement, "to try to balance the limited immunity granted versus the concerns you have with improved property, with taking in more than what the trail or the original intent of the trail was." Number 0441 REPRESENTATIVE GREEN posed a hypothetical situation where an easement suffers from erosion, and someone using it damages a car, or young people who are unaware of danger get hurt there. He asked whether the easement under this bill would provide any immunity that wouldn't exist on another part of a person's land. MR. HUBER answered that the limited immunity granted by the provisions of this bill would extend to the conservation easement and its use for public access for recreational purposes. If erosion or something that doesn't constitute gross negligence has occurred on the trail, and someone has an accident or is injured, that limited immunity would extend to both the landowner and to the holder of the conservation easement. Certainly, he added, if it was gross negligence or an act of omission, then the limited immunity wouldn't apply. Furthermore, it is questionable whether that would be seen any differently on land that wasn't subject to this conservation easement. Mr. Huber stated: If you're recreating on private property, not on an easement, and you don't have permission to be on that property, then I think you'd have a hard time trying to bring a cause, because it's basically trespass on the property. If you're recreating on that property currently, ... for a trail that exists now that we're trying to protect, and you had some type of act, again, it would at least require simple negligence for there to be some kind of cause and for you not to have immunity. If it was a situation like erosion, I believe ... it would be tough to try to lay that fault on a landowner. Number 0626 REPRESENTATIVE GREEN stated his understanding, from Mr. Huber's response, that this bill wouldn't provide any immunity that isn't reasonably afforded anyway. Rather, it just keeps someone from being a target for litigation. MR. HUBER said that is one of the concerns. The question isn't necessarily whether this gives more protection in the courts, but whether it perhaps keeps a landowner out of the courts on a suit that may not prevail anyway. Number 0662 REPRESENTATIVE KERTTULA requested clarification about the exceptions in Section 4. For example, a person coming onto the easement would have no responsibility to pay the owner and would use it for recreational purposes. She asked, "Then you'd have to pay the damages if you were grossly negligent, reckless, or had done something that constituted intentional misconduct; am I reading it right?" MR. HUBER said that is correct. Number 0705 REPRESENTATIVE JAMES requested a definition of "conservation easement." MR. HUBER replied that "conservation easement" exists in Chapter 17 of Title 34. It is basically a nonpossessory interest in land, akin to a license to use land without possession of the actual land transferring. REPRESENTATIVE JAMES asked who would have a conservation easement, and how it would get put on property. MR. HUBER answered that envisioned under this bill, and what State Parks is working on currently, is a conservation easement system wherein State Parks talks to a landowner who perhaps has a piece of land that they are interested in continuing to use as a trail, or perhaps an owner has a piece of land upon which State Parks or a municipality would like to begin establishing a trail. It would then come to the landowner, or the landowner could come to the state or municipality; those are the only entities that can receive a conservation easement, and that are entitled to this immunity. Mr. Huber explained that after going through the process of a negotiated easement, it would be recorded and become attached to the property. Conservation easements can be negotiated both for a time specific and for uses inside of what is allowed under AS 34.17. REPRESENTATIVE JAMES responded, "Thank you. I knew I didn't like them." Number 0813 CHAIRMAN KOTT requested an example of what Mr. Huber believes would be gross negligence, as it relates to this. MR. HUBER answered: I'll try. I would say that if somebody's granted a conservation easement, they know that there's a conservation easement for public access, a trail exists. And perhaps they go out and do some backhoe work, have something underground, something that they want to move, have a problem with the septic tank, and then dig a trench in the ground that crosses into that conservation easement, fail to mark that trench, fail to notice that there's a trench in the ground. Somebody comes along, expecting to use the trail as it's available for use, and falls in this hole that's been created. Mr. Chairman, also, if somebody would know there's a conservation easement and trail access across their land, string a wire or a cable to deny that access, I think those would constitute ... gross negligence. Those are a couple of examples. Number 0880 REPRESENTATIVE CROFT asked whether AS 09.65.200 doesn't do the same thing. He paraphrased a portion of it, which states: (a) An owner of unimproved land is not liable in tort, except for an act or omission that constitutes gross negligence or reckless or intentional misconduct, for damages for the injury to or death of a person who enters onto or remains on the unimproved portion of land if (1) the injury or death resulted from a natural condition of the unimproved portion of the land or the person entered onto the land for recreation; and (2) the person had no responsibility to compensate the owner for the person's use or occupancy of the land. MR. HUBER replied: What you're getting at is land that doesn't meet the supreme court three-part test for unimproved land. Say there's land, that there's a five-acre parcel, the conservation easement or trail in question, looking at just the provisions of 09.600, across a portion of the land. Another portion of the land has been improved. It's possible, then, that all the land would be considered "improved" and then would fall outside of the limited immunity granted for unimproved land. Number 0931 REPRESENTATIVE CROFT expressed his understanding that the goal is to ensure that the proximity of improvements doesn't affect this. He asked, "Do we still mean the natural condition ...? If I'm actually traveling on the improved portion, not this three-part test but the actual improved portion, is there any problem with making that the normal rules?" MR. HUBER requested clarification. REPRESENTATIVE CROFT said he would think about it and try to rephrase it better later. REPRESENTATIVE KOTT asked whether anyone in Juneau wanted to testify; there was no response. He then called upon Dick Bishop. Number 0993 DICK BISHOP, Alaska Outdoor Council, testified via teleconference from Fairbanks in support of SB 45 and the current version, CSSB 45(FIN) am. He reminded members that his organization has worked hard on advocating public access in general, and RS 2477 rights-of-way in particular. He expressed appreciation for public-spirited landowners who allow others to cross or use their lands; he believes they should be protected from possibly frivolous lawsuits. Mr. Bishop informed members that the Alaska Outdoor Council prefers the original language in SB 45 because it is broader in terms of tort immunity. However, they do support and urge passage of this version, which they believe to be a start in the right direction. Number 1075 TIM KRUG, Planner, City of Wasilla, testified via teleconference from the Matanuska-Susitna Legislative Information Office, stating support for SB 45 on behalf of the city for the following reasons. The City of Wasilla is the fastest-growing city in Alaska, and trails across private property are rapidly diminishing with ongoing development. Although the city's trails plan was adopted as part of its comprehensive plan, several identified trails travel over private property; without new legislation, the future of such trails may be in jeopardy. They need a law to protect private landowners who allow trails to cross their property, and this will encourage other landowners to do so. Bills like SB 45 are needed to allow the local city council to determine if it is appropriate for the DNR, the Department of Transportation and Public Facilities, or another state agency to vacate a local right-of-way. Furthermore, the people need to have input towards the vacation of rights-of-way that could affect future trails. Number 1143 CHAIRMAN KOTT asked whether anyone else on teleconference wished to testify; he then closed public testimony. REPRESENTATIVE ROKEBERG expressed surprise that nobody was present from the Administration, as there had been a bill introduced by the Governor on the same topic. He stated his assumption that the Administration supports this. CHAIRMAN KOTT said he believed there had been testimony earlier that indicated the department supports it. He noted that someone from the Administration was present, in case there was a specific question. He asked whether there was further discussion. Number 1198 REPRESENTATIVE ROKEBERG made a motion to move CSSB 45(FIN) am from the committee with individual recommendations and any attached fiscal notes. There being no objection, CSSB 45(FIN) am was moved from the House Judiciary Standing Committee. HJR 23 - COMMUNITY DEVELOP FUND/PFD/BUD RESERVE CHAIRMAN KOTT announced the next order of business is HOUSE JOINT RESOLUTION NO. 23, Proposing amendments to the Constitution of the State of Alaska relating to the community development fund, the permanent fund, and the budget reserve fund. Number 1259 REPRESENTATIVE DAVIS, sponsor, Alaska State Legislature, noted that there was testimony on this legislation last year when it was called the community dividend fund which has since been changed to the community development fund. He explained that this is an endowment for municipal assistance and revenue sharing. The earnings from this endowment would be distributed to legal municipalities. This plan calls for $750 million from the constitutional budget reserve (CBR) to be placed in the community development fund where it will draw interest. The earnings from that will be distributed to the municipalities. Additionally, Representative Davis informed the committee that he was pondering trying to generate additional revenues to the corpus of the endowment. Therefore, HJR 23 still includes receipt of two percent of the dividend earnings for 20 years. REPRESENTATIVE DAVIS acknowledged that the resolution is left vague and noncommittal as to who would administer the fund and the details of the distribution of the fund. Furthermore, the resolution is left completely open with regard to how municipalities would spend the funds received from the endowment. He indicated that there would be the desire to roll a portion of the fund back into the fund in order for the fund to grow. Representative Davis hoped this fund and its distribution would grow. He envisioned municipalities taking over responsibilities that the state currently provides such as road maintenance, education projects, community schools, et cetera. Representative Davis recognized that this plan may have come at an inopportune time as there is another plan such as the Healthy Alaska Plan. However, this endowment may be an opportunity in view of the funds the House eliminated to municipal assistance and revenue sharing. He noted that Representative Moses has a similar proposal. CHAIRMAN KOTT expressed his understanding that those areas not included in the resolution would be done statutorially. REPRESENTATIVE DAVIS said that he prefers to keep things simple when going before the voters. In further response to Chairman Kott, Representative Davis explained that if this passes it would be before the voters at the next general election. If it passes, the money would be transferred to the fund and given a year to generate revenue with the first distribution being in fiscal year 2002. He pointed out that Table 1 in the committee packet illustrates the results with and without inflation proofing. Therefore, the first distribution in 2002 without inflation would result in $117 million which is large because the distributions would actually be from two years of earned income. If there is inflation proofing at three percent, the first distribution would be $69 million. CHAIRMAN KOTT asked if Representative Davis envisioned this fund replacing the current appropriation for municipal assistance and revenue sharing. REPRESENTATIVE DAVIS replied yes. REPRESENTATIVE MURKOWSKI asked if Representative Davis intended for the schools in the community to be funded through this endowment or was he referring to the community school concept. REPRESENTATIVE DAVIS clarified that he was referring to the community school program. REPRESENTATIVE GREEN asked if the estimated growth of this endowment would be comparable to the permanent fund dividend. Number 1792 DEB DAVIDSON, Legislative Administrative Assistant to Representative Davis, Alaska State Legislature, said that the tables before the committee were provided with data from the permanent fund and the same inflation rate was utilized as is for the permanent fund. REPRESENTATIVE GREEN asked if this is a way around a dedicated fund to support municipalities. REPRESENTATIVE DAVIS clarified that this is a dedicated fund. MS. DAVIDSON explained, in response to Representative Croft, that because the total earnings may be a little higher than the percentage on the permanent fund, the language says that the fund will be invested to yield competitive market rates. The Department of Revenue calculated the earnings based on how the CBR is invested because it has more latitude than with the permanent fund. The inflation rate utilized for the permanent fund and the CBR was utilized, while the investment scenarios and portfolios of the CBR were utilized for the community development fund. Therefore, the estimate of total earnings is a little higher due to the different investment policies. In further response to Representative Croft, Ms. Davidson believed that the rate was around eight percent. According to the original table, the realized return to the community development fund was considered at 7.3 percent. She clarified that the $58 million earnings is the 7.3 percent without inflation proofing. The total return would remain the same at $5 million, from which $23 million for inflation proofing would be subtracted. REPRESENTATIVE CROFT asked if the total earnings is the combination of the 2 percent from the permanent fund and the interest that is taken off of it. MS. DAVIDSON clarified that the total earnings is what is earned on the balance of the principal. However, the table reads, for say fiscal year 2001, $750 million plus the $37 million - 2 percent - plus the earnings on that total becomes the principal. There is no distribution the first year. Number 2069 KEVIN RITCHIE, Alaska Municipal League (AML), Alaska Conference of Mayors, said that this is an exciting concept. Municipal assistance and revenue sharing have been a difficulty in the state budget for years. Furthermore, those budget areas have decreased each year which has created substantial discord between the state and the municipalities. This concept would not only create stability in local government, but also a vehicle to accomplish efficiencies in state government. He posed the example of road maintenance. In many areas there is a city and a state road shop. Although the city may be more efficient, the city cannot take over road maintenance because the tax money for such is not available and there is not a vehicle at the state level for such. If the state wanted to transfer state maintenance to municipalities, it would be possible to add an additional endowment to the fund and transfer those with a continuing source of revenue. Such would result in a more efficient system as well as a stable source of revenue to pay for the system over time. Mr. Ritchie felt this concept has arrived at a most appropriate time. REPRESENTATIVE JAMES commented that she was sure the municipalities would like this. She inquired as to how many other groups would prefer an endowment so as to avoid going to the legislature for funding. MR. RITCHIE said that there is a unique relationship between the state and municipalities. In essence, municipalities are state government. He likened municipalities to a local franchise of the state government. Number 2236 REPRESENTATIVE JAMES asked if there has been thought of payment in lieu of taxes. Representative James stated that she is generally opposed to endowments because there is not necessarily a relationship between the amount of funds received and the amount of funds needed. It seems more responsible to have a need to be funded. Currently, there is no opportunity for a municipality to provide any evidence of need. Representative James emphasized that the state should recognize its obligation to assist in some relationship with the municipalities. With this legislation, that is lost. MR. RITCHIE commented that the concept of payment in lieu of taxes is great. He pointed out that some communities include much state property while others do not and therefore, need is not necessarily mirrored. Mr. Ritchie believed that under this plan, the state would define how much money is distributed and could define what the money is distributed for which would provide some control. REPRESENTATIVE JAMES clarified that she was concerned that the money available would not be enough while the same need exists. She reiterated that there should be a relationship between the money distributed and the need which is lost with endowments. CHAIRMAN KOTT noted that under this proposal the municipality would receive more than is currently dispersed under the revenue sharing and municipal assistance. REPRESENTATIVE CROFT pointed out, "A lot of the ideas that are being thrown around now are for endowing the entire, all the pots we have, putting them together and then having everyone come up and say now 'do we fund foster care or municipal assistance?' or and keep that discretion. It certainly was a preference of the framers of our constitution, that we not do a lot of these different pots. Why wouldn't it be the preferable approach to endow everything and then still have the discretion to dole whether it's too much or too little in any one particular year." MR. RITCHIE asked if Representative Croft meant leaving it as it is now with revenue sharing to be an annual appropriation for a revenue sharing program. REPRESENTATIVE CROFT replied yes. He suggested endowing the entire structure and still have people come to the legislature for their share of the funds. MR. RITCHIE pointed out that revenue sharing could get zeroed out and there is not a mechanism in state government to study the impacts of state government on municipal governments. There can be significant impacts on municipal government that do not receive study which he believed to be the case with the major cuts to revenue sharing. Mr. Ritchie said he was unsure as to how to improve that relationship. Municipalities consider the notion of if the state were to take over a service. For example, the senior citizen property tax exemption was initially created with the promise of full reimbursement of the cost which happened for a few years. Of course, things change. TAPE 99-63, SIDE B MR. RITCHIE commented that to be able to discuss with municipalities the ability to transfer certain functions, having a steady source of revenue makes sense. With regard to endowing everything, Mr. Ritchie said that municipalities are "literally half of what the state does." If all the municipal budgets were added, it would amount to about $2.4 billion which is a tremendous group of the services the state provides. According to the Department of Community & Regional Affairs, 75-85 percent of the services provided by municipalities fall into the essential services category that was identified for the Healthy Alaska Plan; those include public health and safety, education, and transportation. Number 0048 CHAIRMAN KOTT asked whether this proposition would be counter to the policy of phasing out municipal assistance and revenue sharing, if that is the legislature's direction. MR. RITCHIE stated that the AML and the Alaska Conference of Mayors disagrees with that policy. If the state eliminated all funding to municipal governments, essential services would plummet. Mr. Ritchie said, "In a sense, we feel that eliminating revenue sharing on the one hand is saying that communities without the ability to provide services go without and there is going to be a very large property tax or sales tax increase in communities that can afford to do that .... And that is probably a long-range fiscal plan issue. If the state were to, as part of its plan, wanted to increase statewide property taxes that is a legitimate thing to discuss as a part of the plan, but we feel that is the kind of impact that you have to look at." REPRESENTATIVE MURKOWSKI returned to Representative James' comments and she hoped that if such an endowment happens, the state could specify which areas the municipality would have to take over. Therefore, municipalities which receive more funds would take over more services and there would be an evening out with respect to how much funding a municipality receives in relation to what it must take over. Number 0180 MR. RITCHIE responded, in response to Representative James, that there are 98 municipalities which have a sales tax. REPRESENTATIVE JAMES pointed out that Anchorage and Fairbanks do not have a sales tax. She indicated that those municipalities continually cry that they cannot do anything due to the property tax cap, but a sales tax could be implemented. MR. RITCHIE said that he believed the property tax rate in Anchorage is around 20 mills while in comparison, the property tax in Juneau is 12 mills, but there is a 5 percent sales tax in Juneau. Mr. Ritchie commented that it does sort of work out. REPRESENTATIVE JAMES interjected that her point is that there are still options. REPRESENTATIVE GREEN understood that Mr. Ritchie believed that if this fund were created, $750 million would be taken from the CBR and the state would not have to deal with funding for municipal revenue sharing. However, that is taking $750 million out of the stream. He asked if there has been consideration given to which communities would not receive this funding. MR. RITCHIE mentioned that this year's funding for municipal assistance and revenue sharing is about $48 million and capital matching grants amount to $15 million which results in a little more than the first year of funding under this proposal. Mr. Ritchie use road service as an example. He believed that many municipalities would be able to provide road maintenance service as a single entity better than can be accomplished as a state and local service structure. However, no municipality could currently afford to take over state road maintenance and there is no guarantee that the state would provide funding in the future for a negotiated contract. In that sense, money would not be taken away from anyone and there would be attempts to be more efficient thus, saving money in a sense. MR. RITCHIE responded further. For example, if the state is spending $20 million on road service in a community. A city could assume that responsibility and potentially do it for less because operations are being combined. That extra money would not be lost. The city would do more to compensate for receiving more funds. Number 0386 REPRESENTATIVE GREEN commented that may not be in the state's best interest. REPRESENTATIVE KERTTULA suggested that it may make more sense to place the funds into one large fund and earmark it there. MS. DAVIDSON informed the committee that when Representative Davis developed this legislation, he recognized that each community has different needs and priorities. Part of the problem is that the state allocates funds according to the different issues such as transportation. Representative Davis believed there would be more options for municipalities to have the ability to utilize the money for the needs the municipality felt important. This would also make it easier for constituents to go to the local government than to the state. Furthermore, when municipalities come to the state for funds, the state could review how the community development funds were utilized when determining the funding for a particular need. There being no one else to testify on HJR 23, public testimony was closed. REPRESENTATIVE JAMES stated that she was willing to move HJR 23 from committee, although she is a no vote. Perhaps, HJR 23 needs to be in House Finance which is its next committee of referral. CHAIRMAN KOTT announced that it was his desire for HJR 23 to be forwarded to House Finance in order to deal with the legislation in the context of the long-range fiscal plan. REPRESENTATIVE GREEN commented that HJR 23 probably "flies in the face" of one of the big issues. He emphasized that he has many reservations regarding HJR 23. Number 0633 REPRESENTATIVE JAMES moved to report HJR 23 out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE ROKEBERG objected. He explained that he has supported this in the past, but it is not consistent with what is attempted in the long-range fiscal plan. This sends a mixed message to the public. Furthermore, the two percent is over-reaching in terms of establishing an endowment. Representative Rokeberg mentioned that if Chairman Kott wishes to move HJR 23, he would help do so, but would have to sign the report "Amend." Representative Rokeberg withdrew his objection. There being no further objection, HJR 23 was reported from the House Judiciary Standing Committee. The committee stood at-ease from 2:21 p.m. to 2:25 p.m. HB 213 - MEDICAL USE OF MARIJUANA [Contains discussion relevant to SB 94.] CHAIRMAN KOTT announced the next order of business is HOUSE BILL NO. 213, "An Act relating to the medical use of marijuana; and providing for an effective date." REPRESENTATIVE DYSON, sponsor, Alaska State Legislature, informed the committee that HB 213 is a companion bill to SB 94. He explained that SB 94 is an attempt to make the medical marijuana initiative Alaskans voted on workable. The amendments encompassed in HB 213 mirror those done in the Senate. At the Administration's request, the attempt is to meet the requirements of the Department of Health & Social Services (DHSS) and the Department of Public Safety. Representative Dyson predicted that public testimony will probably say that this legislation is "messing with the will of the people" which is not the intention of the House Health, Education & Social Services Standing Committee. Number 0855 MIKE PAULEY, Legislative Assistant for Senator Leman, Alaska State Legislature, highlighted the three major changes encompassed in the legislation. Firstly, registration would be required with DHSS in order to have a permit which entitles an individual to utilize marijuana for medical purposes. The initiative passed last fall created a state registry, but did not require that an individual register to have the right to use medical marijuana. The initiative clearly states that even if an individual is not registered, an individual can use marijuana for medical purposes. This creates a problem from the view of law enforcement because without a registration requirement, it would be difficult for police to determine legal marijuana from illegal marijuana. MR. PAULEY turned to the second change which deals with the possession limits. The initiative set out a suggested limit of one ounce of marijuana in usable form and six plants of which no more than three can be mature and flowering. The initiative goes onto say that an individual can possess more marijuana than the above amount if medically justified. However, there is no criteria that would establish what would be considered medically justified. Therefore, HB 213 and SB 94 would establish a limit of one ounce of marijuana in usable form and six plants. This would eliminate any ambiguity, from the perspective of law enforcement, with regard to what amount is legal or illegal. MR. PAULEY highlighted the third change which deals with the role of the primary caregiver. The initiative identifies a primary caregiver as an individual who can assist with the procurement and delivery of marijuana to a patient in need. The problem is that there are not many restrictions regarding who the primary caregiver can be, how many patients he/she can serve; there is room for abuse. Therefore, HB 213 establishes that a patient can only have one primary caregiver and a caregiver can have only one patient. There are some narrowly defined exceptions. Furthermore, a primary caregiver cannot be guilty of a felony violation of Alaska's drug laws. A primary caregiver also cannot be an individual that is currently on probation or parole. He explained that the intent is to eliminate the possibility of criminals registering as primary caregivers for the purpose of having a legal right to distribute marijuana. Mr. Pauley noted that there are some technical changes in HB 213, but the aforementioned areas are the core. CHAIRMAN KOTT asked if a registered individual can walk around with one ounce of marijuana on their person. MR. PAULEY pointed out that there is a provision which specifies that the marijuana is not to be used in a public place. The legislation includes an exception allowing the individual to carry one ounce of marijuana, in a closed container, on the person, and not visible to others. This exception is only for the purpose of transporting the marijuana to a place where it can be legally used. In further response to Chairman Kott, Mr. Pauley believed that an Elks Lodge would be considered a private place, but Mr. Guaneli from the Department of Law may be better qualified to answer. Number 1148 CHAIRMAN KOTT inquired as to how many joints one ounce of marijuana would make. MR. PAULEY said that a lot of marijuana can be produced from one ounce of usable marijuana and six plants. He noted that Mr. Smith from the Department of Public Safety could probably comment on that. REPRESENTATIVE DYSON stated that 20 to 50 joints can be produced from one ounce of marijuana. REPRESENTATIVE MURKOWSKI pointed out that the committee packets include testimony from Ms. Adams, Alaskans for Drug-free Youth. Ms. Adams testimony said that she attended a demonstration in which one ounce of marijuana resulted in nearly 100 rolled joints. Representative Murkowski informed the committee that she has seen that demonstration and has been part of that demonstration. Furthermore, depending upon the potency the effects can last all day. Number 1398 REPRESENTATIVE CROFT pointed out that the initiative said, "these limits unless medically necessary for more." He inquired as to where was that changed. MR. PAULEY pointed out that the initiative established the possession limits in Section 17.37.020 which is deleted by HB 213. The possession limits are established in HB 213 on page 11. REPRESENTATIVE CROFT stated that part of the crux of this initiative was to treat marijuana as other drugs that have similar effects such as relieving pain, creating euphoria, or stimulating appetite. "It does not seem to me to be exceptional to have 20 to 50 pills of a prescription nature for a chronic, maybe even, debilitating disease. It doesn't seem laughably out of whack. Isn't that a major change? If a doctor would say to the police and swear in court that this was medically necessary and we're just saying no, we're putting an absolute limit." REPRESENTATIVE DYSON clarified, in response to Representative Murkowski, that it is 100 hits per ounce. Therefore, it is a supply for many days. REPRESENTATIVE CROFT asked, "Is there any such law in our books that if a doctor prescribes 50 pills and it's medically necessary and you have a prescription for it, that we're just going to say that you can't do that?" REPRESENTATIVE DYSON informed the committee that a major problem is that the federal law makes it illegal for a doctor to prescribe marijuana. This problem would be eliminated if the federal government would change marijuana to another schedule to be treated as any other prescription medicine. Such a change would allow doctors to write prescriptions for marijuana, which is currently illegal, and pharmacies could dispense marijuana. Representative Dyson encouraged Representative Croft to direct his question to the Department of Law and the Department of Public Safety. He reiterated that the goal is to satisfy law enforcement requirements in order to establish illegal and legal users. REPRESENTATIVE CROFT asked if the committee would hear testimony from doctors because this was primarily intended as a medical statement. REPRESENTATIVE DYSON mentioned that he spoke with an intern friend of his in Anchorage who took HB 213 to the legislative committee of the local American Medical Association (AMA). This friend said that most doctors would not have difficulty in filling out the form. REPRESENTATIVE DYSON indicated that there would be testimony from individuals with desperate physical conditions for whom marijuana is really helpful. Those individuals would be appropriate to inquire as to how many joints a day are needed, how many joints are produced from an ounce of marijuana, how long an ounce of marijuana lasts, and if the individual has a designated provider who could also possess a supply. Number 1691 REPRESENTATIVE JAMES inquired as to where these individuals would get providers. REPRESENTATIVE DYSON discussed his conversations with California officials who are concerned with quality control due to the variation in potency and quality. First California attempted to have known government-sponsored plots, but there was concern regarding the protection from nonmedical users. Now California is contemplating indoor growers. Representative Dyson said that illustrates the difficulty in this situation until the federal government treats marijuana as any other medicine. REPRESENTATIVE JAMES noted that she did not vote for this initiative. She had the impression that these individuals would grow their own or the caregiver would grow the marijuana. Therefore, the possibility of having a provider who provides marijuana to those covered under the initiative and those not would be eliminated. CHAIRMAN KOTT inquired as to how three mature, flowering, plants equate to the one ounce. MR. PAULEY deferred to the Department of Public Safety. He pointed out that the initiative removed marijuana from the list of controlled substances in Alaska. Prior to the passage of the initiative, the statute read "Marijuana is a schedule VIA controlled substance." The initiative added the language encompassed in HB 213 on page 2, lines 23-24 which reads, "[EXCEPT FOR MARIJUANA POSSESSED FOR MEDICAL PURPOSES UNDER AS 17.37]" Mr. Pauley said, "As far as this state's controlled substances are concerned, marijuana used for medical purposes has no more legal significance than a can of 7UP or a jar of peanut butter." Therefore, there are some serious legal implications. For example, it is illegal to have a firearm on your person when under the influence of alcohol or a controlled substance to the point to which the individual's physical or mental condition is impaired. That would no longer be true with medical marijuana. Since medical marijuana is no longer a controlled substance, an individual could be stoned on marijuana, possess a weapon and that would not be considered a crime. There are several other statutes that would result in similar situations. Mr Pauley emphasized that HB 213 places marijuana back in the controlled substance schedule which is very important. Number 2066 REPRESENTATIVE KERTTULA asked if registration under the initiative was voluntary and has been changed under HB 213 to be mandatory. MR. PAULEY explained that the initiative created a registry and Mr. Finkelstein has indicated that it was the belief that everyone should register, but the initiative does not state as such. He directed the committee to page 4, Section 17.37.030 which specifies the criteria for medical use of marijuana, there is no mention of registration. REPRESENTATIVE KERTTULA pointed out that the initiative does speak to registration on page 4, lines 22-25. MR. PAULEY stated that the language referred to by Representative Kerttula does not require registration and there is no disagreement on that point. He mentioned that Mr. Finkelstein testified in previous committees that it was the initiative's intent to leave registration optional. REPRESENTATIVE MURKOWSKI returned to the issue of quality control. She noted that the THC content in marijuana varies widely, especially in Alaska. Therefore, what works for a patient on a Saturday may not be what works on a Thursday due to the use of a different batch of marijuana. The quality issue is very problematic. REPRESENTATIVE ROKEBERG understood that the constitution provides that any initiative cannot be changed in the first two years. MR. PAULEY explained that the legislature cannot repeal a law enacted by initiative for two years, but the law can be amended which is explicitly stated in the constitution. Mr. Pauley acknowledged that there is a legal gray area. There have been court cases in which an initiative has been amended in such a dramatic way that it repeals the initiative de facto, but not explicitly. The consensus is that the courts would find that unconstitutional. Mr. Pauley did not believe that the changes encompassed in HB 213 are so severe that the court would interpret them as repealing a person's right to use medical marijuana. TAPE 99-64, SIDE A Number 0001 REPRESENTATIVE ROKEBERG suggested that the committee should get a letter to that effect. DEL SMITH, Deputy Commissioner, Office of the Commissioner, Department of Public Safety, informed the committee that the drug units that have worked with the state troopers and local law enforcement advise that the average plant in Alaska produces about four ounces. It can be anywhere from one ounce to ten ounces depending on the size of the plant. One ounce and six plants is a sufficient amount. MR. SMITH addressed the department's concern about "medically necessary" which is not defined anywhere. Under the Ravin decision one could possess marijuana for "personal use" but someone claimed 100 pounds was his personal use which lead to the four ounce maximum possession for personal use. Mr. Smith would like a bright line for law enforcement with regard to the patient being registered, the amount of marijuana patients can possess, where the patient can possess it, and who is the patient's primary caregiver. Number 0374 CHAIRMAN KOTT asked what procedures would be available if the patient dies and the caregiver is left with a pound or two of marijuana. He wondered if it is incumbent on the caregiver to dispose of the marijuana through the department or are there other mechanisms that could be used. MR. SMITH said he supposed that was an option but he doubted many people would follow that particular one. He is not aware of anything that would require the caregiver to do that. He did not have an answer. REPRESENTATIVE GREEN asked whether there has been any discussion on the strength of marijuana, and is there movement towards an undesirable location. MR. SMITH answered potentially. The MMA calls for that amount. There certainly is an increase in the THC content of marijuana from 20 years ago. REPRESENTATIVE JAMES inquired as to how fast the marijuana plants grow. MR. SMITH answered that to be beyond his expertise, although there is substantial investment made in greenhouse operations and grow lights in the Matanuska Valley. He has heard the plants can be harvested three to four times a year. REPRESENTATIVE KERTTULA asked how the registration would work now. MR. SMITH explained that if an unregistered individual is found with marijuana, the officers would determine if the person looked sick enough to have medical marijuana and if not, the marijuana would be seized and the individual charged with possession. These charges could potentially be undone in court and the marijuana returned which is not a good use of criminal justice resources. Mandatory registration would be more appropriate. REPRESENTATIVE KERTTULA mentioned that Alaska is a state where people don't even want to register their guns. She predicted the same problem with prescription drugs. MR. SMITH answered he would probably ask if there is a prescription for the drug and check for a bottle with the individual's name on it which would serve the same purpose as a marijuana registry card. Number 0983 REPRESENTATIVE ROKEBERG asked Mr. Smith a large marijuana growing area is busted, can the potency of the plants be determined. Would that have any bearing on the charges and/or the evidence acquired? MR. SMITH said that the crime lab can determine the THC content, but he didn't believe that it would enhance the charge in any way. The total amount of marijuana possessed, not necessarily the strength, would determine the charge. Number 1074 REPRESENTATIVE CROFT asked Mr. Smith if it is illegal for him to have codeine without a prescription. MR. SMITH answered to his knowledge he would need a prescription for codeine. REPRESENTATIVE CROFT asked what the standard procedure would be if an individual was pulled over and found to have codeine without the prescription there. The individual either doesn't have a prescription or is unwilling to show it to the officer. MR. SMITH responded that is situational. He could see a situation where an officer might seize the pills to look into it further. In further response to Representative Croft, Mr. Smith stated that he was unaware of a list of codeine users. REPRESENTATIVE CROFT inquired as to whether Mr. Smith would attempt to find out if the individual had a prescription. MR. SMITH replied if the individual said Dr. Feelgood prescribed the drug to him/her, it would be appropriate to call Dr. Feelgood's office and asked if that person is a patient. REPRESENTATIVE CROFT asked whether a warrant would eventually be necessary to resolve such a situation. MR. SMITH replied if the individual was not arrested at the time the police would probably have to return with a warrant in order to charge the individual with possession. However, it would depend on the situation so it is hard to answer. He noted that he tries to be fair in the application of the law. REPRESENTATIVE CROFT said when Ravin was passed, four ounces of marijuana was chosen as the amount someone could keep. MR. SMITH clarified that the Ravin decision allowed the possession of marijuana. The legislature determined the amount of four ounces after lengthy discussion of whether stems and seeds should count in the total amount. Still, the federal law prohibiting the possession of marijuana was not addressed nor does this particular one. REPRESENTATIVE CROFT inquired as to who is allowed to view the list of registered medical marijuana users; how onerous would it be for law enforcement to have to obtain a warrant to search that list? MR. SMITH envisioned the individual carrying the card. If the individual is not carrying the card, the officer could ask for the individual's driver's license and request dispatch review the registry in order to determine if the individual in question is on the list. If that isn't possible, the other option would be to take the marijuana from the individual. REPRESENTATIVE CROFT commented that the initiative gave them the authority to search the list. MR. SMITH agreed, but noted that people did not have to register. He doesn't want the officers put in the position of trying to determine whether someone is telling the truth about being able to possess medical marijuana. He would rather sort things out and not have to charge someone who is legally possessing marijuana. Number 1518 DEAN GUANELI, Chief Assistant Attorney General, Legal Services Section - Juneau, Criminal Division, Department of Law, testified in Juneau. He stated that the Administration has heard the voters who want to provide marijuana to people with debilitating medical conditions. The aim of the Administration in working with the sponsors of SB 94 and HB 213 is to make a workable system. There are certain flaws in the current initiative that would lead to administrative problems which would ultimately lead to the programs failure. Both SB 94 and HB 213 correct all of those problems therefore, the Administration supports these efforts. Number 1518 CHAIRMAN KOTT asked Mr. Guaneli whether an Elk's Club would be considered a public place, and would someone be able to use marijuana there under the current scheme. MR. GUANELI explained that the particular provision doesn't use the term public place, but rather "open to the general public." Private clubs would not be open to the general public although, an argument could be constructed where it is open to the public. Mr. Guaneli believed that if a court is applying that particular language dealing with criminal prosecutions, terms in the law are construed against the state in favor of a defendant. It probably would be permissible to use marijuana for medical purposes in a private club. Having said that, he also felt it would be permissible for the private club to have a by-law saying it doesn't want members doing that. Number 1690 REPRESENTATIVE MURKOWSKI asked whether this could possibly be construed as repealing the initiative. Has the Department of Law taken a position or been asked for an opinion on this? MR. GUANELI said no opinion has been solicited but upon review of the various versions of the bills it was determined that at least those versions would not constitute an appeal of the initiative. In Alaska an initiative cannot be repealed for two years, but it can be amended at any time which the courts have construed as giving the legislature very broad discretion to amend initiatives. The Alaska Supreme Court has said as long as the basic purpose and structure still remain, the legislature can change policy choices that the voters adopted. The basic purpose in structure to allow very sick people to have access to marijuana is certainly still retained in any of the versions. Mr. Guaneli indicated that the Department of Law would believe it to be constitutional. Number 1768 REPRESENTATIVE ROKEBERG proposed a situation in which the U.S. Attorney decided to be more aggressive in the enforcement of federal laws. Could the Alaska State Troopers make an apprehension on a judgement call and turn the evidence over to the U.S. Attorney for prosecution of federal law? MR. GUANELI replied that is something that is possible and actually happened with a few large marijuana growing operations in the Matanuska-Susitna valley several years ago. A few cases were prosecuted by the U. S. Attorney's office and got very stiff sentences which created a situation where the marijuana growers were more willing to go into state court and plead to a state offense rather than be subjected to federal prosecution. He pointed out that really only occurs with the large growing operations because the federal government doesn't have the resources to deal with the smaller cases. Number 1835 REPRESENTATIVE ROKEBERG asked whether the U. S. Attorney General has articulated a policy about dealing with states who pass initiatives. MR. GUANELI understood that there are a number of discussions underway in terms of developing a national approach to medical marijuana. He didn't expect the federal government to deal with this in terms of enforcement. REPRESENTATIVE ROKEBERG asked Mr. Guaneli if he foresaw problems enforcing the Alaska state law if marijuana clubs were formed in Alaska. MR. GUANELI replied yes. There is a provision in the initiative that says a registered patient may not sell or distribute marijuana to anyone who the patient knows is not entitled to use it. If all of the negatives are eliminated, it would result in a registered patient being able to sell to other people if the registered patient didn't ask. Such a provision is likely to result in marijuana clubs or places where registered patients could lawfully sell marijuana to other people. The danger of allowing someone to possess more than one ounce and six plants is this provision. The marijuana clubs in California were shut down because there was nothing specific in their law that suggested marijuana clubs were legal. In Alaska the oddly worded provision would allow that which is one of the real dangers in this particular initiative. Number 2142 BILL KOZLOWSKI, a 27-year-old with severe hemophilia, testified in Juneau. He informed the committee that he has been prescribed narcotics throughout his life, to the point where he was taking 60 milligrams of morphine a day and 28, four milligram, Dilotted tablets a day. He commented that is a lot of narcotics, but noted that is for pain that is very, very real. During those times of being prescribed large amounts of narcotics he was unable to exist in a normal life. He could not remember having a conversation with anybody, what he did yesterday or the day before, and he could not hold work due to the pain and daily bleeding in his body. Until five months ago, he was taking the aforementioned amount of narcotics, which would kill most people. He explained that amount of narcotics probably doesn't kill him because he has an enormous tolerance to those narcotics. The more he uses those narcotics, the more his body builds up a resistance to them which results in the need for more. He stressed the difficulty this creates when coming off of the narcotics. The withdraw of morphine, which he has endured many times, is something he would wish upon no human being. It is an existence where one sweats, vomits, cries and spends the most miserable existence imaginable. In the last five months Mr. Kozlowski has stopped using narcotics that extensively. However, his life will never be free of narcotics because of his disability; but on the day-to-day basis it can be. Marijuana is one thing that he can use that allows him to remember a conversation, to have a life, to go for a walk with his wife. Small things that many people take for granted but are very, very important. MR. KOZLOWSKI commented that he hears talk about usage in the amount of an ounce or four ounces. The reality is, over time, people build immunity to these things and terminally ill people who are not getting better, are always going to have these problems. Nobody is going to develop a cure for hemophilia, Hepatitis C, or HIV [human immunodeficiency virus] right now. Those diseases are debilitating. With regard to HB 213, he expressed concern with the registration requirement. Mr. Kozlowski informed the committee that he has had to endure discrimination because of hemophilia. Ninety percent of hemophiliacs have HIV which was contracted through blood in the 1980s. He commented that he is one of the luckiest hemophiliacs he knows. He is the only hemophiliac in Alaska who does not have HIV and one of six on the west coast. He finds it hard to listen to people make jokes with regard to marijuana use. He emphasized that people are forgetting this is about more physical pain than one could ever imagine. He pointed out that many look at him as a 27-year-old man who could lift 10 pounds, but he can't. Lifting 10 pounds, moving that chair, can cause an internal bleed which results in pain for weeks. MR. KOZLOWSKI informed the committee that the drug products that he uses cost $2,000 a pop. Sometimes he uses that two or three times a day, for months. Last year his blood costs and pharmaceuticals cost $550,000. He noted that he has personally spent thousands of dollars of his money on pharmaceuticals. Currently, with medical marijuana he can grow it in his home, take care of his own needs and be a productive member of society. The only other option is narcotics; marijuana or narcotics, it seems simple. He said that he can either be a junkie and have a short life or he can make his life the best he can. The laws don't matter to people who are in this position because they are going to die anyway of something much more painful than anything the state could do to them. Mr. Kozlowski urged the committee to give it a chance to work as it is. Number 2374 REPRESENTATIVE ROKEBERG asked Mr. Kozlowski if he believed people without major medical debilitating conditions should be able to take advantage of his condition and use marijuana "piggy backing" off of his problems. MR. KOZLOWSKI commented that currently someone can go to a doctor and he can legally prescribe morphine, Demerol, Dilotted, Methadone, all drugs that are so much harder on the body. The argument that if marijuana is legalized for medicine then everybody will be smoking it, if that were true then people would be using morphine in the streets, which is a much more addictive drug. He informed the committee that if he were to stop smoking marijuana for pain, he could go to sleep, it may be painful, but he would be able to sleep and his body would not have to sweat out narcotics for up to a week. If he were taking narcotics for a month and he stopped, it could kill him because of the toxicity of those drugs. Number 2431 REPRESENTATIVE ROKEBERG expressed concern that medical marijuana users are being used, to a degree, to allow people, acting under the guise of a condition, to do something that has formerly been illegal. Such people don't have a problem like Mr. Kozlowski and are taking advantage of loopholes in the law. MR. KOZLOWSKI pointed out that those people would be subject to the same regulations and laws that apply to morphine, methadone, Demerol, Dilotted, all those classes of drugs. If someone has a prescription for morphine, it is illegal for that person to give it to someone else, just as it is illegal for him to give his marijuana to his wife. TAPE 99-64, SIDE B MR. KOZLOWSKI likened the registry, which can be checked to verify for criminal investigation or prosecution, to fishing from a stocked pool. What is to protect him from having that abused by someone that is really against the use of marijuana for medical or any purpose? Number 0033 REPRESENTATIVE ROKEBERG noted that anyone with a prescription is on a list from the dispensing pharmacy. MR. KOZLOWSKI asked how that registry is accessed. REPRESENTATIVE ROKEBERG said he believes it is confidential in terms of the pharmacy and is not generally available to the public. MR. KOZLOWSKI noted Mr. Smith's testimony that officers could call a doctor's office and ask for verification if someone has a prescription. Mr. Kozlowski said the officer can't do unless the patient has given the doctor a release of medical information. With regard to discrimination, people assume that Mr. Kozlowski has HIV because he is a hemophiliac and people treat him like "so, do you have AIDS yet?" Many times he heard that from doctors and nurses. He said he doesn't want to live through that stigma. He said he is not a criminal and is not somebody who actively hurts any individual. Mr. Kozlowski stated that he is only looking to take care of his own medical needs which is not a lot to ask. The voters of Alaska have agreed that the people who need medical marijuana should be eligible to use medical marijuana. Number 0102 CHAIRMAN KOTT commented that the committee is trying to do that and eliminate the loopholes to give the people exactly what they want. He asked Mr. Kozlowski how many plants would be enough. MR. KOZLOWSKI answered that it seems to him that police everyday can discern if somebody is using tobacco or alcohol legally. If somebody is driving with a truckload of marijuana, it probably is not for medicinal use. He doesn't know anyone who uses medical marijuana who would ever claim that a truckload would be their need. As far as personal use goes, Mr. Kozlowski informed the committee that he smokes one ounce every 10 days to control the pain. Without that he would be up to 60 milligrams of morphine and 28, four milligram tablets of Dilotted a day. He emphasized that they are splitting hairs in areas he doesn't know how one could ever control. He didn't know how one could ever control the amount taken from one plant because it does vary so greatly. Number 0240 CHAIRMAN KOTT asked Mr. Kozlowski if he knew what one ounce of marijuana would cost on the street if he were to buy it illegally. MR. KOZLOWSKI answered between $500 and $600 per ounce. Number 0274 CHAIRMAN KOTT asked whether Mr. Kozlowski started off using one ounce every 10 days or has his system built up an immunity. MR. KOZLOWSKI replied that his system has built up a tolerance to marijuana as was the case with morphine and other drugs. Over time, the more he uses, the more he will need. If anyone in this room took 60 milligrams of morphine, he would die. He explained that he uses marijuana when his body hurts, when there is blood in his joints, when his hips or shoulders have swollen, when it hurts just to get up and go to the bathroom. He noted that marijuana does not make him high or feel good, but it gets him to a point where the pain is not the only thing he can think of. REPRESENTATIVE ROKEBERG asked how long it takes to grow a decent-size plant. MR. KOZLOWSKI answered that it depends of which method is used. Some people used hydroponics with which every six to eight weeks one can turnover a crop, while with dirt it would probably take three to four months for a crop. CHAIRMAN KOTT surmised then that once a quarter he could turn over a crop. MR. KOZLOWSKI agreed. In further response to Representative Rokeberg, he stated that the size of that crop would depend. Marijuana varies in strength, size, quality, and growth. REPRESENTATIVE ROKEBERG noted that the problems regarding amounts of medical marijuana are caused by what the initiative stipulated in the open-ended clause. Number 0427 REPRESENTATIVE MURKOWSKI agreed that people like Mr. Kozlowski need to have medical marijuana and they need to make it work. She recognized that this needs to work for Mr. Kozlowski as well as for the rest of the public which includes law enforcement and children. She expressed the need to understand from someone like Mr. Kozlowski, the problems of the registration. If registration is optional, Mr. Kozlowski is put in jeopardy. The registration process was proposed in an effort to protect him, but if registration is not mandatory, then Mr. Kozlowski is at risk which is not the intention. She asked how they would get from here to there. Number 0516 MR. KOZLOWSKI understood that if he did somehow become in trouble with the law for medical marijuana, that under Measure 8, that as long as he had a doctor's recommendation that was documented in his medical file, that would not be an issue. Number 0545 REPRESENTATIVE MURKOWSKI wondered what happens if he is stopped at 1 a.m. on Saturday night and the doctor isn't around until Monday morning to confirm his recommendation. Would the officer seize his marijuana which he desperately needs over the weekend? She wondered how Mr. Kozlowski would be protected in that instance if there is no registration. Number 0590 MR. KOZLOWSKI commented that the registration is a Catch-22 because the State of Alaska has made a law that allows people to use medical marijuana while the United States of America still has not allowed that law. Therefore, the registry would place his name on a registered list of things that are federally illegal which is asking for a lot more problems. He indicated that it is crazy to register his medical condition on an open registry for which his doctor has to write a letter stating his exact medical condition. This would ask people to state that they have HIV, hepatitis and a whole gamut of medical conditions that are no one's business. Placing his name on a list that is still federally illegal is more threatening to him than the state. He informed the committee that he has used marijuana, on and off, for 10 years for pain medication. Only in the last five months has he used it solely and he has never had any problems with the law. He questioned how the registry is really going to protect him so that his medical records are not released and that somebody is not going to access those files and discriminate against him for his disability. Number 0671 REPRESENTATIVE MURKOWSKI understood that the registry list would be confidential and would only be available to law enforcement officers. CHAIRMAN KOTT agreed that was his understanding. It wouldn't be like the sex offender list that is available on the Internet. He asked Mr. Kozlowski if it would offer some satisfaction if the physician did not have to identify the patient's symptoms. Number 0733 MR. KOZLOWSKI pointed out that he is having to prove his innocence before he is guilty of anything. He reiterated that he is not a criminal. If a police officer knocked on his door and asked if he was growing marijuana, he would be happy to show the officer his plants, his $40,000 worth of blood supply. People with a medical problem have plenty to illustrate their medical condition such as other medicines and documentation that they can show a police officer. The registry is an invasion of privacy. REPRESENTATIVE ROKEBERG noted that the short form of the initiative on the ballot indicated that a registry would be expected by the public. MR. KOZLOWSKI said it should be optional. REPRESENTATIVE ROKEBERG commented that he didn't believe the public knew that, and that is the problem with this initiative. He suggested to Mr. Kozlowski that, because it has been passed as a statutory privilege and not a constitutional right, the best thing to do to protect himself and his ability in the future is to try to make some modifications of this law to live with. Representative Rokeberg indicated that Mr. Kozlowski also has some responsibility with the privilege that was granted by the people of Alaska to meet his needs. REPRESENTATIVE ROKEBERG said he didn't believe the whole nine-page chapter was on the ballot; it was a short-form question on the ballot. "People were sold that and nobody, nobody reads the whole bloody law. I'm going to tell you, 99 percent of the people who voted didn't read this. If 5 percent did, then 99 percent didn't understand it." MR. KOZLOWSKI answered "Excuse me, but that is silly to say because that is like saying if 99 percent of people don't read these things then how are you elected. How are you people elected if people are not paying attention and reading and being part of the process, how are you elected in your seats?" REPRESENTATIVE ROKEBERG said the initiative is nine pages long and he didn't believe people read it. He referred back to the registry and indicated that there is an expectation that there would be a registry. MR. KOZLOWSKI commented that when he read it he noticed that it did not have mandatory registration. He reiterated that it is nobody's business what debilitating disorder he has. Number 0949 CHAIRMAN KOTT asked Mr. Kozlowski if that ballot proposition the way it was written required the end user to register on a confidential list and carry a card, would he have supported it. MR. KOZLOWSKI replied that he probably would have supported it because it was a necessity, not for just him. He stressed that he is present for the people who are too scared to talk; people who are afraid to say that they use marijuana for pain. REPRESENTATIVE KERTTULA appreciated Mr. Kozlowski's courage for coming in and testifying and putting himself at some risk. She believed a registry could be created for the people who could go do it; but for those who don't want to do it, they may be taking a risk. She appreciated what Mr. Smith said also but her own personal belief is that Alaska is a state where no one wants to register their guns, why would they want to register their medical conditions. Number 1015 CHAIRMAN KOTT interjected that Alaskans do register their guns if they carry them under their coats. REPRESENTATIVE ROKEBERG clarified that he was not advocating registering conditions. The committee took an at-ease from 4:08 p.m. until 4:48 p.m. ELMER LINDSTROM, Special Assistant, Office of the Commissioner, Department of Health and Social Services [DHSS] came forward to testify. He said they have worked with the Department of Law and the Department of Public Safety to try to come up with recommendations that everyone could live with and support as the administration. The DHSS brought a different perspective than the law enforcement agencies. The previous testimony reflected some of the concerns of DHSS. He recognized that law enforcement had legitimate concerns. However, any solution must not make the administrative burden on DHSS difficult or unduly interfere with the doctor/patient relationship which is key to making this program work and most importantly, is the issue of patient confidentiality. The bill has gone through numerous iterations. He assumed that the amendments that provided before the meeting will be before the committee for consideration. Number 1226 MR. LINDSTROM referenced an amendment, labeled G.1, which addresses the confidentiality issue. The previously expressed concern regarding a requirement to be on the mandatory registry is a real concern. The issue of confidentiality is something that DHSS lives with everyday of the week and there is nothing that DHSS takes more seriously than the issue of patient or client confidentiality. The department has a very good record over the years of respecting the law in that regard. He noted that it is not infrequent that he gets called to task by members of the legislature because DHSS does take the issue of confidentiality so seriously. He recommended that the committee consider amendment G.1. The department doesn't believe it has any reason to have information from a doctor that specifies the underlying condition that a person might have. There is no law enforcement reason for DHSS to have that information and furthermore, the Department of Public Safety has also said it doesn't need that specific information. He acknowledged that there will be people who will not register, but ultimately that will get resolved over time when people gain confidence that DHSS can be a responsible custodian of that registry and that likewise law enforcement will be responsible in their ability to access that registry. REPRESENTATIVE KERTTULA noted that the fiscal note doubles to go from voluntary to mandatory registration. There isn't anything illegal about not registering now, it is voluntary, she asked whether that was the department's understanding of the way it worked right now. MR. LINDSTROM agreed that currently it is a voluntary registry. The department has developed regulations which will go into effect June 1, and persons will be able to register voluntarily with DHSS. Regarding the fiscal note, the department had no ability to get funding in anticipation of the initiative passing so there was a budget increment in their budget which was turned down by both the House and Senate Finance Committees. It was about $70,000. Without this fiscal note of $57,000, this legislation is not going to satisfy the real concerns of the law enforcement community because DHSS will not be able to provide the information that law enforcement will need. The department envisions law enforcement having real time access to the registry through the public safety network, criminal justice system. Without this money, law enforcement won't have that information. Number 1574 REPRESENTATIVE GREEN asked if an unregistered person is stopped, would that person be prosecuted. MR. LINDSTROM explained that the current regulations will have to be written from top to bottom assuming that this legislation passes. If the legislation doesn't pass, the regulations are a process for the department to operate a voluntary register. If an unregistered person is stopped, the department wouldn't know anymore than the cop on the beat because there would be nothing in the register. REPRESENTATIVE KERTTULA inquired as to what kinds of drugs do people have to register for now. MR. LINDSTROM replied that this is a unique situation. Number 1664 REPRESENTATIVE MURKOWSKI asked whether the regulations have changed much since March after public comments were received. MR. LINDSTROM informed the committee that he was surprised the department received virtually no public comment on the regulations The regulations remain pretty much the same as those presented to the House Health, Education and Social Services committee earlier. REPRESENTATIVE MURKOWSKI inquired as to what would be in effect in the interim if they pass either SB 94 or HB 213 and DHSS would be back at the drawing board with their regulations. MR. LINDSTROM answered that the new legislation would override the existing regulations to the extent the current regulations are contrary to anything in the amended law. Some of the elements would remain consistent, but the department would need to develop additional regulations on the new material from this bill. The department would operate on the basis of the legislation itself until new regulations were in place. This program would call for moving forward with those regulations pretty quickly. REPRESENTATIVE KERTTULA pointed out that under HB 213 peace officers would be allowed to access the record just in the course of a criminal investigation. She asked Mr. Lindstrom if he knew of any other medical records that could be accessed in such a manner without a warrant or without the person's consent. AL ZANGRI, Chief, Vital Statistics, Division of Public Health, Department of Health and Social Services, answered that DHSS has routine access to all medical birth records. MR. LINDSTROM noted that DHSS has no objection to any of the amendments but wanted to reference the one as being most pertinent. REPRESENTATIVE GREEN asked Mr. Lindstrom if the department has no objection, does that mean the department is ambivalent or that it would support the amendments. MR. LINDSTROM responded that the department really likes Amendment 1 and likes the others okay. DAVID FINKELSTEIN, Alaskans for Medical Marijuana, came forward to testify. He explained that when this legislation was originally introduced, it was March 4, the day the initiative went into effect. At that time the Alaskans for Medical Marijuana were quite defensive and were concerned that this legislation would repeal the initiative and the patients wouldn't benefit from the new law. Since that time things have changed. The Administration and Senator Leman have tried their best to respond to many of the concerns expressed by doctors and patients which is appreciated. However, Alaskans for Medical Marijuana remains opposed to this legislation, but will continue to try to work with the Administration and with the sponsor. He didn't want any of his comments to detract from their efforts to try to find something that will not alienate and eliminate the patients from the benefits of this law. MR. FINKELSTEIN informed the committee that the drafters of the Alaskan initiative tried to put in many details since that was the number one complaint of the California initiative. He agreed that there are some legitimate complaints with some of the details and how those are laid out. The reason there was so little response to the regulations is that many of those issues were already dealt with in statute through the initiative. The drafters also learned from the California experience with regard to amounts. California has no limit on amount. Of all the initiatives that have passed around the country, the standard of one ounce, six plants which can only be exceeded if someone can prove in court that it is medically justified, is the lowest limit of any state who has adopted such an initiative. He is not aware of any state with an amount lower than Alaska. It is the lowest amount the group could come up with and still give the patients a chance to produce some useable marijuana. MR. FINKELSTEIN noted that the California initiative of 1996 did not have any set list of medical conditions; it was basically whatever the doctor wanted to recommend. He personally feels that is the way it should be done, but that approach was not chosen because Californians complained that people could get marijuana for a hangnail or something. In Alaska it has to be something on the list of medical conditions. The registration system has faced a lot of complaints, as if there is something deceptive to having a registration system. There hasn't been a single state that has adopted an initiative with a mandatory registration. The states are striving for optional registration. TAPE 99-65, SIDE A MR. FINKELSTEIN continued saying that unregistered patients have no protection from arrest. He appreciated all the concerns expressed by the Administration and recognized the need to work together to address those concerns. However, the system will work as it is because the patients who don't want to register are not worried about arrest. Furthermore, f someone hasn't registered and gets into court, all he/she will have to do is provide evidence that he/she is legally allowed to have medical marijuana. Mr. Finkelstein encouraged patients to register if they want protection of the law. This is a non-issue because the patients are out there with small amounts of marijuana and not bothering anyone. He agreed they can't do anything about private locations, but they want to prohibit use in public location. MR. FINKELSTEIN pointed out that there are several issues that revolve around mandatory registration. The system should be such that it will benefit the patient to encourage registration. He cited the kind of protection the patient receives from law enforcement as a critical issue. Under the initiative, any patient who follows the law, meets all the requirements, registers with the state, is not subject to arrest. The burden is on the prosecution to prove their case. Under this bill, the term not subject to arrest is not provided, even to patients who register with the state. Instead the registered patients receive an affirmative defense which as he understands it, places the burden of proof on the patient. The patient has an affirmative defense if the patient can come up with the evidence that illustrates compliance with the law such as possession of the registration card, proof that the patient didn't use marijuana in public and that the patient is under the limits. It is up to the patient to show that and until the patient can prove that, the patient is presumed guilty. If patients make the effort to register and comply, they should have the presumption of innocence. MR. FINKELSTEIN stated that with mandatory registration patients will be discouraged to register due to access to the list. The initiative only allowed access to the list by the department and law enforcement officials in order to verify someone showing a card. This bill adds two conditions. The first one is someone claiming this as a defense but doesn't have a card; this would give the officer an opportunity to check the list for their name and that is certainly logical. The second is to access the list for investigations which is not the intent of the initiative nor the purpose of this system. Furthermore, it will discourage patients from registering. Doctors disclosing symptoms to the state will also discourage participation. MR. FINKELSTEIN commented that the issue of caregivers is also important. The department adopted some reasonable regulations on the current law which allows only one patient per caregiver unless one can illustrate a circumstance in which the caregiver has a particular relationship with more than one patient. If there is a hospice situation where someone is professionally offering assistance to more than one person, it seems reasonable that a hospice employee could apply to the department and be allowed to have a relationship with more than one patient. The bill makes an attempt to address some situations through the reference to family members. However, Mr. Finkelstein believed that there are other circumstances in which the caregiver is not a family member. He wouldn't expect many applications for such situations. The department should have the discretion to review such circumstances. Number 0647 MR. FINKELSTEIN referred to the issue of how the patients obtain marijuana. The patient has the option of growing marijuana, but some will not grow marijuana either because their condition doesn't allow it or they don't succeed at it or for unknown reasons. Mr. Finkelstein indicated that it is not as easy to obtain the marijuana as it sounds. The choice is for the patients to go on the black market. There were attempts to establish a system that would allow patients to get marijuana from other patients, but DHSS and the sponsor have reasonable objections. He suggested that the middle ground would be to ban sales between anyone, but that one patient could give marijuana to another patient as long as there is no compensation involved. Otherwise, how will the patients obtain the marijuana legitimately? He acknowledged that there is a problem in that area and they can't solve it. The ultimate solution would be to categorize it as Schedule II so patients could obtain it from pharmacies, but in the meantime this would be a humane way to help those who can't obtain it. Number 0737 MR. FINKELSTEIN identified the forfeiture language as another key provision. The initiative was written with the idea that anyone who isn't breaking the law, who hasn't been found guilty, doesn't forfeit their assets. The drug forfeiture law is pretty extreme and for good reason. He clarified that the language of the initiative says that if someone isn't guilty, that their assets are returned. Mr. Finkelstein returned to the subject of the caregiver. He explained that the age of the caregiver was set at 18 because if a 17-year-old claimed to be a caregiver and it turned out they weren't, the 17-year-old would be under the juvenile laws and not subject to the full force of the law. The Department of Law and the sponsor felt that 21 was more reasonable because of alcohol laws and other things while Mr. Finkelstein believed 18 is a more appropriate age. REPRESENTATIVE GREEN asked whether marijuana is similar to tobacco in that it will dry out if it is kept very long. MR. FINKELSTEIN recalled a television program about a federal farm in Mississippi that grows marijuana for eight patients. The federal government itself provides marijuana for these patients. He discussed the process and assumed there would be some issues of volatility or whatever. He didn't know what the pharmacy or distribution point does with it at that point. Mr. Finkelstein believed it ironic that the federal government who is opposed to medical marijuana is distributing medical marijuana. REPRESENTATIVE MURKOWSKI asked Mr. Finkelstein how the state who limited the amount of marijuana to two months supply defined a two months supply. MR. FINKELSTEIN answered he didn't know and it didn't sound like a good solution to him. He commented that the patient doesn't care what the amount is but rather how long it will last. He believed that law enforcement was unhappy with that provision. MR. FINKELSTEIN indicated that they never meant to imply that there would be any attempt by law enforcement officials to misuse the existing forfeiture law which is a very complicated subject. He noted that they have never had a patient claim there has been any particular harassment using the issue of forfeiture on medical marijuana patients, but the protection does seem reasonable. REPRESENTATIVE JAMES noted that she didn't vote for this initiative. However, she indicated that she would have voted for allowing the use of medical marijuana if she had felt comfortable with the initiative's language. She recognized people are using marijuana illegally now. She expressed concern with the registration; where are patients going to get marijuana from when there is no legal way to obtain it. She didn't believe seriously ill people are going to be able to grow their own. Perhaps, the caregiver may be able to grow it for the patient which still raises the question of how do they get it. Are these ill people that are allowed to use medical marijuana allowed to drive a car and do other things under the influence of marijuana? It seems as if the patients have carte blanche authority to do whatever, whenever and she was nervous about that. MR. FINKELSTEIN noted that they tried to address that, but the Administration's view is that their way is better. The issue of driving while inebriated still applies, there is no exception. If someone drives under prescription drugs, he/she is an incapable driver and is not protected which also applies to medical marijuana. He pointed out that there was general language that no person using medical marijuana shall endanger the health and well-being of another person. Although the language doesn't specifically say driving, but it would certainly be a violation of the law if someone is threatening anyone else by driving under the influence of marijuana. With regard to the issue of where patients get marijuana, that is a problem to which he didn't have the answer. If it is ever Schedule II, people can get it at the pharmacies. He noted that the federal government has confiscated plenty which could be redistributed. REPRESENTATIVE JAMES asked whether Mr. Finkelstein believes, now that the initiative has passed, there will be more people using marijuana for medical uses or will the same folks continue using it. MR. FINKELSTEIN said he could only speak anecdotally based on his contact with patients. Everyone is different but lots of people indicate that they would with an identification card. Many have been law-abiding their whole lives and are not about to take this illegal drug without some proof to protect them from being thrown in jail. CHAIRMAN KOTT asked where senior citizens who are not growers are acquiring the marijuana. MR. FINKELSTEIN speculated that senior citizens obtain marijuana through family members or younger people who have connections. The statistics provided by the state indicate that marijuana is not hard to get. However, there are plenty of people who don't have or don't want any contact and those folks are going to be in a dilemma. Hopefully some of them will figure a way out of it. CHAIRMAN KOTT said if he were in a situation where he needed some marijuana to curb some serious pain, would he be guilty of a crime by buying an illegal drug on the street. MR. SMITH said he couldn't foresee a situation, or it would be rare, that they would be involved at that point unless they had some sting operation and somebody shows up to buy some marijuana. He believed there could be a good argument if the individual was a medical marijuana user, that the search and acquisition of it might fall under the protection as a registered user. It is unlikely the person would be prosecuted. If it were prosecuted, he doubted that the jury would find the person guilty. If he were the officer at the time, he would probably not make the arrest, but that doesn't guarantee another officer would do the same. MR. FINKELSTEIN informed the committee that California has tried many approaches. The city of Oakland has attempted to develop a distribution system using the government in an attempt to eliminate the black market; they are trying to recirculate extra marijuana from drug busts. There are things that could be done. Number 1690 REPRESENTATIVE GREEN asked whether one can tell the difference between plants by looking at them. MR. FINKELSTEIN said he had no idea. He identified the bigger issue as how do patients deal with this issue of different strengths. Patients claim that there are more compounds in medical marijuana that have an effect. Smoking allows the patients to self-titrate which allows the patient to control the amount and the patient can receive a relatively quick reaction. Drugs, like Marinol, take one to two hours to take effect and often don't work for the problems such as nausea. Mr. Finkelstein explained that patients basically smoke a small amount, determine if it is effective and if not, smoke more. It is a practical system, but it is not very scientific. REPRESENTATIVE GREEN wonders if there is information on volume. MR. FINKELSTEIN answered there are lot of issues about growing. He commented that law enforcement isn't busting people in their homes for small amounts. Furthermore, it is unlikely that someone is going to have forests of marijuana in their home. The intent certainly is to have a limited quantity, but the intent is to have an exception for people who need more than the specified limit to, if necessary, make their case in court to prove that more is medically justified. That provision is no longer included. REPRESENTATIVE MURKOWSKI asked Mr. Finkelstein if people understand that they have the protection of the law only if they register. MR. FINKELSTEIN responded that whatever understanding people have is derived from what state government or advocacy groups explain to them so he feels that understanding is yet to be derived. The average citizen, patient, and even doctors don't know what the law is. If the patient does not want to be subject to arrest, they must register with the State of Alaska. That is the message they have been consistently giving out. Although, Mr. Finkelstein agreed that the departments' concerns are very reasonable, he didn't think it would be a problem. REPRESENTATIVE MURKOWSKI expressed the need to strike a balance. If people don't register, they have to understand that law enforcement is going to do the 1 a.m. arrest. MR. FINKELSTEIN agreed. CHAIRMAN KOTT noted that there is an enormous amount of public safety time taken up with this issue of arresting someone who is a legitimate user, but hasn't registered. He wondered if there should be some sort of consequence for taking up that amount of public safety time. MR. FINKELSTEIN agreed that is a good point. The way it is going to work is the same way it works now. Officers on the street have a large amount of discretion. Even in the past, if someone has a doctor's letter and all the requirements, odds are they wouldn't be arrested. He has heard that law enforcement has too much to do without focusing on small amounts in the home. REPRESENTATIVE ROKEBERG asked whether the National Institute of Health will be taking up the medical use of marijuana. MR. FINKELSTEIN answered that Barry McCaffrey, the "drug czar" asked the Institute of Medicine, arm of the National Academy of Science, to do a study after the California initiative passed. The report came out this spring and the general findings were that medical marijuana does help patients in a variety of circumstances. The report also found that smoking marijuana was detrimental and the ultimate solution had to be some sort of system developed to avoid the toxic side-effects of smoking. CHAIRMAN KOTT suggested that the committee proceed to the amendments. TAPE 99-65, SIDE B Number 0047 REPRESENTATIVE JAMES made a motion to adopt Amendment 1, which read: Page 2, lines 2 - 3: Delete "symptoms disclosed in the physician's statement described in AS 17.37.010(c)" Insert "debilitating medical condition diagnosed by the patient's physician" Page 4, lines 3 - 4: Delete "and specifying the nature of the patient's symptoms" CHAIRMAN KOTT asked whether there was any objection. There being none, Amendment 1 was adopted. REPRESENTATIVE JAMES made a motion to adopt Amendment 2, which read: Page 3, line 31, following "relationship": Insert "and setting out the date the examination occurred" Page 7, line 18, following "documentation": Insert ", including a statement signed by the patient's physician containing the information required to be submitted under (c)(1) of this section," Page 8, following line 10: Insert a new subsection to read: "(r) The department may not register a patient under this section unless the statement of the patient's physician discloses that the patient was personally examined by the physician within the one-year period immediately preceding the patient's application. The department shall cancel, suspend, revoke or not renew the registration of a patient whose annual resubmission of updated written documentation to the department under (k) of this section does not disclose that the patient was personally examined by the patient's physician within the one-year period immediately preceding the date by which the patient is required to annually resubmit written documentation." REPRESENTATIVE CROFT objected. Number 0133 MR. PAULEY informed the committee that originally HB 213 included a stipulation that a patient applying to be listed on the registry had to have provided a physician's statement saying he had been diagnosed with a debilitating medical condition and that medical use of marijuana is indicated. The requirement was that the physician's examination of the patient had to have occurred within a three-month window prior to the date of application. In the House Health, Education and Social Services Committee that three-month requirement was removed and which was partially in response to a concern expressed by DHSS. The department thought that could potentially create a hardship for patients in rural areas. Theoretically, a patient could have one examination and never get examined again. This amendment puts back in a requirement that a physician's examination has to occur within a one-year period as well as an annual renewal requirement. REPRESENTATIVE ROKEBERG asked whether the caregiver's card is annually reviewed. MR. PAULEY answered the way it is written, the caregiver's card goes to the patient. REPRESENTATIVE CROFT noted that patients with incurable diseases don't need an annual exam to tell them that they still have the disease. There are requirements in the bill that are both valid and adequate and he didn't see any need for Amendment 2. REPRESENTATIVE JAMES commented that people who are seriously ill are going to the doctor all the time. REPRESENTATIVE KERTTULA pointed out that is accurate, but this is intrusive. Number 0477 MR. ZANGRI said the department's position is that the ill patient will see the physician often enough in the year so that this will not be burdensome in most cases. The department is concerned that the prior provision requiring a three-month exam is intrusive and burdensome. It may be burdensome in this case in the bush for people to actually see a physician once a year but if they are terminally ill we wouldn't have any problem with doctor contact and a requirement for a personal physical examination. REPRESENTATIVE KERTTULA commented that seems to be a harsh requirement. REPRESENTATIVE ROKEBERG noted this would not be workable in the rural areas with telemedicine. REPRESENTATIVE JAMES asked whether in rural areas they have physician's assistants [PA] and nurse practitioners [NP]. MR. ZANGRI agreed with the concern in rural areas where the standard medical practice is a PA rather than a physician. However, there is a way around it in current statute if they continue to define physician as somebody who is licensed to practice medicine in the state because PAs and other secondary practitioners are indeed licensed to practice medicine. REPRESENTATIVE JAMES said she doesn't have any problem with a PA or NP making this decision because they work under the auspices of a physician. She would do anything to help the rural people not have to make a trip to town to find a physician. 0635 REPRESENTATIVE CROFT indicated that the words "personally examined by a physician" has a lot of unintended consequences. REPRESENTATIVE JAMES suggested he reword it. REPRESENTATIVE CROFT said he believes it is worded correctly in the bill itself. It has two requirements: "you update who you are and you got to keep your condition going." More attempts to straitjacket this, will result in more people with legitimate problems that have not been hypothesized here. The straitjacket of Amendment 2 is not necessary. REPRESENTATIVE ROKEBERG noted that physician is defined in statute and wondered if the department is correct in that a PA can become an equivalent of a physician for the purposes of this legislation. Number 0717 MR. ZANGRI explained that a physician is any person licensed to practice medicine. A nurse practitioner and a physician's assistant are in fact licensed to practice medicine in the State of Alaska. MR. PAULEY said the definition of physician is unchanged from the initiative; it is not a new definition in HB 213. The committee took an at-ease from 6:15 p.m. to 6:16 p.m. Number 0775 REPRESENTATIVE JAMES made a motion to delete lines 3 through 16 of the amendment. REPRESENTATIVE CROFT said that Representative James correctly noted that there is nothing wrong having the initial setting saying the date the examination occurred. REPRESENTATIVE JAMES noted there is another problem in the last paragraph because it is the only place where they will get the one-year period. She said she would have to rethink that last paragraph. REPRESENTATIVE CROFT read from page 7, line 16 which reads: To maintain an effective registry identification card, a patient must annually resubmit updated written documentation to the department as well as the name and address of the patient's primary caregiver or alternate caregiver. REPRESENTATIVE CROFT noted they will report annually. The question is are they going to get in a weird situation when someone wasn't personally seen by their physician within the last year. REPRESENTATIVE MURKOWSKI asked whether they aren't still required to do that in (c)(1)(a). The Committee took an at-ease from 6:17 p.m. to 6:23 p.m. REPRESENTATIVE JAMES made a motion to amend the amendment to just delete lines 6 through 16. REPRESENTATIVE CROFT said he would not have an objection to that amendment to Amendment 2. CHAIRMAN KOTT asked whether there was any objection. There being none, Amendment 2 as amended was adopted. Number 0905 MR. PAULEY informed the committee that at the House HES meeting, Mr. Finkelstein testified that this requirement that a primary caregiver could only care for relatives, if they are in the same household could pose a burden to people due to the way families are structured these days. This is just a simple amendment to delete that requirement and give more flexibility in that area. The Department of Law had no problem with it either. Number 0935 REPRESENTATIVE JAMES made a motion to move Amendment 3, which reads: Page 5, lines 6 - 7: Delete "reside in the same household as the caregiver and" REPRESENTATIVE KERTTULA objected. She asked what happens in a hospice situation. REPRESENTATIVE JAMES explained that is covered in another amendment. CHAIRMAN KOTT asked whether there was any objection. There being none, Amendment 3 was adopted. REPRESENTATIVE JAMES made a motion to adopt Amendment 4 which reads: Page 1, line 14, through page 2, line 3: Delete all material. Renumber the following paragraphs accordingly. Page 2, lines 17 0 18: Delete all material. Renumber the following paragraphs accordingly. Page 2, line 20: Delete all material. Renumber the following paragraph accordingly. MR. PAULEY explained that Amendment 4 attempts to address some testimony, from critics of the legislation in previous hearings, that it is an unreasonable requirement that the defendant has to prove that the total amount of marijuana in their possession was not being used for a non-medical purpose. It is the sponsor's view that in the real world it doesn't get interpreted that way, and the language is superfluous. It is an affirmative defense portion. REPRESENTATIVE CROFT wondered why the critics want to remove one potential affirmative defense. He also wondered why the definition of debilitating medical condition as a reference and the definition of the physician were deleted. MR. PAULEY explained that the paragraph that is removed is the only place in the section where those words are mentioned. Therefore, with the paragraph removed there is no reason to have the definitions there. The definition still exists, those are just referential definitions that refer to the definitions in Section 7 beginning on page 12. They are conforming amendments. The deletion of the definitions doesn't have any substantive impact. MR. PAULEY commented that there has been a lot of testimony about the burden of proof issue. There is a statute under the controlled substances act, Title 11, Chapter 71, Section 50 on burden of proof. It doesn't apply to the initiative as it is currently worded because it took marijuana off the controlled substances list, but in AS 11.71.350 it says: "It is not necessary for the state to negate an exemption or exception provided for in this chapter in a complaint, information, indictment, or other pleading or at a trial, hearing, or other proceeding under this chapter or AS 17.30. The defendant has the burden of proving by a preponderance of the evidence any exemption or exception claimed by the defendant." Legal services was asked if the affirmative defense requirement in HB 213 was the same allocation of the burden of proof that would exist in any other controlled substance case as the law reads. Legal services replied yes. The burden of proof resides with the defendant as in any other similarly situated controlled substance case. REPRESENTATIVE KERTTULA asked if that is why there is a new Section 4, page 8, lines 11-15 as well with the affirmative defense language. MR. PAULEY replied that is correct. REPRESENTATIVE KERTTULA said in a regular drug prosecution, possession must be proven beyond a reasonable doubt; there doesn't have to be any affirmative defense to that. They could have an affirmative defense, but they are not just agreeing that the burden of proof rests with the prosecution on proving possession in a normal drug case. MR. PAULEY passed out a copy of the memorandum from legal services which covered this issue. The question to legal services was: Is this language consistent with the 'affirmative defense' approach in Section 1 of CS for SSSB 94, [or in this case HB 213,]. Is it accurate to state that the burden of proof in SSSB 94 [or HB 213] is no different than what is required in existing law for any other defendant who is charged with misusing a prescription drug? Answer: Yes. For example, this section basically means that the state as part of its case does not have to disprove that a person did not have a prescription for a controlled substance that a person possessed - the person has the burden to prove that their possession was lawful as they were the lawful ultimate user of the controlled substance by a prescription. The affirmative defense is consistent with this approach. REPRESENTATIVE KERTTULA indicated that there are two questions there. "If you want an affirmative defense of a prescription and you want an affirmative defense to come back, that is right. The question and the answer are right. But it is the original burden of proof you don't want to screw up of even possessing. What if you say I didn't have the marijuana? That burden of proof rests with the prosecution." She wondered if they kept that burden of proof in the right way. That is critical and they don't want to mess around with that. REPRESENTATIVE CROFT stated that isn't relevant to Amendment 4. It is to another amendment that has to do with switching between an affirmative defense to defense. MR. PAULEY agreed; strictly speaking it isn't relevant. He brought it up because he felt it would add something to the discussion, but it isn't an issue that needs to be resolved in order for the committee to act on this. REPRESENTATIVE CROFT asked whether they need Amendment 4; and, if so, why? MR. PAULEY explained that Amendment 4 grew out of complaints about that particular paragraph of the bill. Upon review of that language, it was realized it was not necessary. CHAIRMAN KOTT said the short answer is no. Number 1523 REPRESENTATIVE JAMES withdrew Amendment 4. MR. FINKELSTEIN told the committee that this amendment came out of Senator Leman's office to accommodate the concerns of patients. The patient who is trying to get the affirmative offense has to prove all of these points so if there is one point off the list, it is one less thing they have to prove. He believed it is significant because how could it ever be proven that the entire amount of marijuana in their possession is more than for medical use for the patient alone. There is no ability to prove that. Mr. Guaneli from the Department of Law agreed that it is unnecessary. REPRESENTATIVE JAMES made a motion to adopt Amendment 4. There being no objection, it was so adopted. REPRESENTATIVE ROKEBERG made a motion to adjourn. There being no objection, it was so ordered. ADJOURNMENT Number 1634 CHAIRMAN KOTT adjourned the House Judiciary Standing Committee meeting at 6:37 p.m.