ALASKA STATE LEGISLATURE  HOUSE JUDICIARY STANDING COMMITTEE  February 8, 2013 1:05 p.m. MEMBERS PRESENT Representative Wes Keller, Chair Representative Bob Lynn, Vice Chair Representative Neal Foster Representative Gabrielle LeDoux Representative Charisse Millett Representative Lance Pruitt Representative Max Gruenberg MEMBERS ABSENT  All members present COMMITTEE CALENDAR  HOUSE BILL NO. 24 "An Act relating to self-defense in any place where a person has a right to be." - MOVED CSHB 24(JUD) OUT OF COMMITTEE HOUSE BILL NO. 69 "An Act exempting certain firearms and firearm accessories in this state from federal regulation; providing criminal penalties for federal officials who enforce or attempt to enforce a federal law, regulation, rule, or order regulating certain firearms and firearm accessories in this state; and providing for an effective date." - HEARD & HELD HOUSE JOINT RESOLUTION NO. 4 Urging the President of the United States to rescind 23 executive orders related to regulation of firearms; and urging the United States Congress to refrain from passing legislation that restricts the right of individuals to keep and bear arms. - MOVED CSHJR 4(JUD) OUT OF COMMITTEE HOUSE BILL NO. 83 "An Act relating to certain federal statutes, regulations, presidential executive orders, and secretarial orders; relating to the duties of the attorney general; and providing for an effective date." - HEARD & HELD PREVIOUS COMMITTEE ACTION  BILL: HB 24 SHORT TITLE: SELF DEFENSE SPONSOR(S): REPRESENTATIVE(S) NEUMAN, ISAACSON, LYNN, FEIGE 01/16/13 (H) PREFILE RELEASED 1/7/13 01/16/13 (H) READ THE FIRST TIME - REFERRALS 01/16/13 (H) JUD, FIN 02/06/13 (H) JUD AT 1:00 PM CAPITOL 120 02/06/13 (H) Heard & Held 02/06/13 (H) MINUTE(JUD) 02/08/13 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 69 SHORT TITLE: EXEMPT FIREARMS FROM FEDERAL REGULATION SPONSOR(S): REPRESENTATIVE(s) CHENAULT 01/16/13 (H) READ THE FIRST TIME - REFERRALS 01/16/13 (H) JUD 01/18/13 (H) BILL REPRINTED 1/17/13 02/08/13 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HJR 4 SHORT TITLE: OPPOSE GUN CONTROL ORDERS & LEGISLATION SPONSOR(S): REPRESENTATIVE(S) MILLETT 01/24/13 (H) READ THE FIRST TIME - REFERRALS 01/24/13 (H) JUD 02/06/13 (H) JUD AT 1:00 PM CAPITOL 120 02/06/13 (H) Heard & Held 02/06/13 (H) MINUTE(JUD) 02/08/13 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 83 SHORT TITLE: FEDERAL REGULATIONS & EXECUTIVE ORDERS SPONSOR(S): REPRESENTATIVE(S) KELLER 01/22/13 (H) READ THE FIRST TIME - REFERRALS 01/22/13 (H) JUD 02/08/13 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER REPRESENTATIVE MARK NEUMAN Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Provided comments during discussion of HB 24 as one of the bill's joint prime sponsors. BOB BIRD Nikiski, Alaska POSITION STATEMENT: Testified in favor of HB 24. DAVID LEE Nikiski, Alaska POSITION STATEMENT: Characterized HB 24 as fabulous. REPRESENTATIVE MIKE CHENAULT Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Sponsor of HB 69. TOM WRIGHT, Staff Representative Mike Chenault Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Assisted with the presentation of HB 69 on behalf of the sponsor, Representative Chenault. KATHLEEN STRASBAUGH, Attorney Legislative Legal Counsel Legislative Legal and Research Services Legislative Affairs Agency (LAA) Juneau, Alaska POSITION STATEMENT: As the drafter of HB 69, responded to a question. BOB BIRD Nikiski, Alaska POSITION STATEMENT: Provided comments during discussion of HB 69. ELAINA SPRAKER, Clinic Director Women on Target; Clinic Director Teens on Target Friends of NRA Soldotna, Alaska POSITION STATEMENT: Provided comments during discussion of HB 69. WES NEWCOMB Anchor Point, Alaska POSITION STATEMENT: Provided a comment during discussion of HB 69. AARON BUSCHE-VOLD Homer, Alaska POSITION STATEMENT: Testified in support of HB 69, Version N. DAVID LEE Nikiski, Alaska POSITION STATEMENT: Testified in support of HB 69. SCOTT HAMANN Kenai, Alaska POSITION STATEMENT: Provided comments during discussion of HB 69. MIKE COONS Palmer, Alaska POSITION STATEMENT: Provided comments during discussion of HB 69. ROD ARNO, Executive Director Alaska Outdoor Council (AOC) Wasilla, Alaska POSITION STATEMENT: Testified in support of HB 69. LARRY SLOAN Homer, Alaska POSITION STATEMENT: Testified in support of HB 69. HAL SMITH, M.D. Homer, Alaska POSITION STATEMENT: Testified in opposition to HB 69. ALFRED McKINLEY, SR. Juneau, Alaska POSITION STATEMENT: Provided comments during discussion of HJR 4. BOB BIRD Nikiski, Alaska POSITION STATEMENT: Testified in support of HJR 4. MIKE COONS Palmer, Alaska POSITION STATEMENT: During discussion of HJR 4, suggested that the resolution be changed. RICHARD SVOBODNY, Deputy Attorney General Central Office Criminal Division Department of Law (DOL) Juneau, Alaska POSITION STATEMENT: Responded to a question during discussion of HJR 4. JIM POUND, Staff Representative Wes Keller Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Presented HB 83 on behalf of the sponsor, Representative Keller. DAVID JONES, Senior Assistant Attorney General Opinions, Appeals, & Ethics Section Civil Division (Anchorage) Department of Law (DOL) Anchorage, Alaska POSITION STATEMENT: Responded to a question during discussion of HB 83. ACTION NARRATIVE 1:05:46 PM CHAIR WES KELLER called the House Judiciary Standing Committee meeting to order at 1:05 p.m. Representatives Keller, Gruenberg, Foster, LeDoux, Lynn, and Millett were present at the call to order. Representative Pruitt arrived as the meeting was in progress. HB 24 - SELF DEFENSE  1:07:02 PM CHAIR KELLER announced that the first order of business would be HOUSE BILL NO. 24, "An Act relating to self-defense in any place where a person has a right to be." 1:08:29 PM REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, which read [original punctuation provided]: Page 2, line 3, following "any": Insert "other" CHAIR KELLER objected. REPRESENTATIVE GRUENBERG explained that Amendment 1 would clarify that HB 24's proposed new AS 11.81.335(b)(5) addresses locations other than those already outlined in existing AS 11.81.335(b)(1) and (3), which are premises that the person owns or leases, premises where the person resides at, premises where the person is the guest or agent of the owner, lessor, or resident, and a building where the person works in the ordinary course of his/her employment. He added his belief that Amendment 1 would improve HB 24. CHAIR KELLER expressed concern that Amendment 1 might introduce confusion [in cases where the affirmative defense of self- defense is pursued]. 1:14:30 PM REPRESENTATIVE MARK NEUMAN, Alaska State Legislature, as one of the joint prime sponsors of HB 24, characterized Amendment 1 as a friendly amendment, one that would assist in clarifying that [the affirmative defense of self-defense could be available to anyone who uses] deadly force in any place he/she has a right to be - that there is no duty to leave the area if the person is in any place where he/she has a right to be. CHAIR KELLER removed his objection to the motion to adopt Amendment 1. REPRESENTATIVE LEDOUX, in response to comments, suggested that paragraphs (1)-(5) of proposed AS 11.81.335(b) be reordered such that those paragraphs addressing locations be grouped together separately from those paragraphs addressing persons. REPRESENTATIVE NEUMAN, noting that he's had discussions with the drafter, indicated disfavor with making such a change. REPRESENTATIVE LEDOUX mentioned that the drafter has also recommended that existing AS 11.81.335(b)(1) and (3) be retained regardless that proposed new paragraph (5)'s language would include the locations currently outlined in those paragraphs (1) and (3). CHAIR KELLER ascertained that there were no further objections, and stated that Amendment 1 was adopted. 1:24:45 PM BOB BIRD characterized HB 24 as a wonderful bill, one that he hopes he never has to use, and said he is all in favor of HB 24, adding his belief that it would be helpful in situations wherein [the affirmative defense of self-defense is pursued]. 1:26:30 PM DAVID LEE, referring to the defense of one's self as an absolute right, characterized HB 24 a fabulous bill, and commended the [joint prime sponsors] for introducing it. CHAIR KELLER, offering his understanding that no one else wished to testify, closed public testimony on HB 24. REPRESENTATIVE GRUENBERG, mentioning that a lot of his constituents have contacted him expressing support for HB 24, said he would be signing "do pass" on the committee report for HB 24. REPRESENTATIVE LEDOUX characterized HB 24 as a good bill, and noted that she received many letters from constituents regarding the bill. 1:30:11 PM REPRESENTATIVE LYNN moved to report HB 24, as amended, out of committee with individual recommendations [and the accompanying fiscal notes]. There being no objection, CSHB 24(JUD) was reported from the House Judiciary Standing Committee. The committee took two at-eases between 1:30 p.m. and 1:32 p.m. HB 69 - EXEMPT FIREARMS FROM FEDERAL REGULATION  1:32:25 PM CHAIR KELLER announced that the next order of business would be HOUSE BILL NO. 69, "An Act exempting certain firearms and firearm accessories in this state from federal regulation; providing criminal penalties for federal officials who enforce or attempt to enforce a federal law, regulation, rule, or order regulating certain firearms and firearm accessories in this state; and providing for an effective date." [Included in members packets was a proposed committee substitute (CS) for HB 69, Version 28-LS0290\N, Strasbaugh, 2/4/13.] 1:32:41 PM REPRESENTATIVE MIKE CHENAULT, Alaska State Legislature, sponsor - referring to the Alaska State Constitution, and to the Second Amendment, the Ninth Amendment, and the Tenth Amendment to the U.S. Constitution - explained that the intent of HB 69 is to assert the state's rights and to protect Alaskans' rights to keep and bear arms, and is being introduced [in anticipation of] memorandums and legislative proposals that could be issued by the President based on recommendations submitted by a workgroup formed to address gun violence and which were announced on January 16, 2013, and which are intended to help keep firearms out of the wrong hands. He offered his understanding of what some of those recommendations entailed, such as making schools safer and increasing access to mental health services. However, he warned, any forthcoming legislative proposals based on those recommendations could affect citizens' Second Amendment rights as well as states' [Tenth Amendment] rights. 1:35:28 PM REPRESENTATIVE LYNN moved to adopt the proposed committee substitute (CS) for HB 69, Version 28-LS0290\N, Strasbaugh, 2/4/13, as the working document. The committee took a brief at-ease. REPRESENTATIVE GRUENBERG objected. 1:36:48 PM TOM WRIGHT, Staff, Representative Mike Chenault, Alaska State Legislature, explained on behalf of the sponsor, Representative Chenault, that HB 69 would alter the statute [addressing State policy, declarations, and requirements concerning certain firearms not in interstate commerce and not subject to federal regulation - AS 44.99.500 -] enacted in 2010 via House Bill 186. Section 1 of Version N would add legislative findings to uncodified law; specifically, Section 1's paragraph (1) contains some language from Texas legislation, and its paragraph (2) duplicates some of the findings added to uncodified law via the aforementioned 2010 legislation. Sections 2, 3, and 4 of Version N would add the words, "possessed in this state or" to AS 44.99.500(a), (b), and (d), respectively. Section 5 of Version N would add new paragraphs (f) and (g) to AS 44.99.500 that read: (f) A federal statute, regulation, rule, or order adopted, enacted, or otherwise effective on or after January 1, 2013, is unenforceable in this state by an official, agent, or employee of this state, a municipality, or the federal government if the federal statute, regulation, rule, or order attempts to (1) ban or restrict ownership of a semiautomatic firearm or a magazine of a firearm; or (2) require a firearm, magazine, or other firearm accessory to be registered. (g) An official, agent, or employee of the federal government who enforces or attempts to enforce a federal statute, regulation, rule, or order unenforceable under (f) of this section that is adopted on or after the effective date of (f) of this section is guilty of a class C felony and may be punished as provided in AS 12.55. MR. WRIGHT noted that several people throughout the state requested that a violation under the bill be changed to a class C felony, and thus Section 5 now contains that change. Section 6 of Version N, he went on to explain, would add to uncodified law a provision stipulating that Section 5's proposed new subsection (f) is retroactive to January 1, 2013, and Section 7 of Version N provides for an immediate effective date. He mentioned in conclusion that HB 69 is similar to Wyoming legislation currently moving through the process. 1:39:50 PM REPRESENTATIVE GRUENBERG, referring to Section 6, questioned why Section 5's proposed new AS 44.99.500(f) would be retroactive. MR. WRIGHT explained that the sponsor wanted to ensure that the bill applied to any memorandums and legislative proposals that result from the aforementioned workgroup's recommendations, which, again, were announced on January 16, 2013. REPRESENTATIVE GRUENBERG expressed concern that making that provision retroactive could create what he termed an ex post facto problem because it would result in criminalizing behavior that was legal at the time it occurred. MR. WRIGHT referred to a memorandum from Legislative Legal and Research Services dated January 22, 2013, that said in part: Section 6 of the bill makes retroactive to January 1, 2013, the legislature's declaration in proposed AS 44.99.500(f) (sec. 5 of the bill) that certain actions are unconstitutional. ... However, retroactive laws that have the effect of imposing criminal penalties on conduct that precedes the enactment of the law are ex post facto laws that are forbidden by both the federal and state constitutions. The committee took an at-ease from 1:44 p.m. to 1:46 p.m. MR. WRIGHT relayed that in light of that information, the sponsor might consider eliminating the retroactive aspect of the bill in order to avoid that ex post facto problem. He ventured that such a change wouldn't be hard to effect. 1:50:16 PM KATHLEEN STRASBAUGH, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency (LAA), concurred that HB 69 could easily be changed to that effect. REPRESENTATIVE MILLETT expressed favor with HB 69. 1:51:45 PM BOB BIRD, mentioning that he was mobilizing support for HB 69 on the Kenai Peninsula and that he'd provided the committee with written testimony, offered his belief that there are limits to the federal government's power and that the federal government should have this fact pointed out to it. He then referred to [memorandums from Legislative Legal and Research Services dated January 16, 2013, and January 30, 2013, as well as to the aforementioned January 22, 2013, memorandum]; expressed disagreement with the drafter's conclusions outlined therein; offered some historical information; and expressed his fear that [any forthcoming legislative proposals based on the aforementioned workgroup recommendations] could result in his firearms, ammunition, and associated equipment being confiscated by the federal government. 2:02:17 PM ELAINA SPRAKER, Clinic Director, Women on Target; Clinic Director, Teens on Target, Friends of NRA, after mentioning the mission of the two programs she directs, offered her belief that HB 69 would help protect Alaskan's Second Amendment rights and [help the state defend against] federal overreach, shared some historical information, and indicated concern regarding [any forthcoming legislative proposals based on the aforementioned workgroup recommendations]. 2:08:08 PM WES NEWCOMB expressed appreciation for anything that could be done to ensure that citizens' gun rights aren't taken away. 2:09:11 PM AARON BUSCHE-VOLD said he fully supports HB 69 and Version N's proposal to make a violation under the bill a class C felony. 2:09:37 PM DAVID LEE paraphrased the Second Amendment to the U.S. Constitution, and said he supports HB 69 100 percent. 2:10:24 PM SCOTT HAMANN, referring to Version N's proposed class C felony penalty for federal officials, agents, and employees, opined that it's important to include that level of penalty in HB 69, regardless that some may view it as the biggest problem with the bill, so that people will know that "we're serious about this." 2:11:29 PM MIKE COONS, after offering some historical information, asked whether under HB 69, state law enforcement officers would be able to arrest federal officials, agents, and employees. In conclusion, he said he applauds what the bill's sponsor is doing and fully endorses it. 2:17:08 PM ROD ARNO, Executive Director, Alaska Outdoor Council (AOC), said that the AOC supports HB 69 very strongly and supports [Version N's] increased penalty. Referring to [Article I, Section 19, of] the Alaska State Constitution and to the Second Amendment to the U.S. Constitution, he asked that the bill be passed from committee. 2:18:34 PM LARRY SLOAN said he supports HB 69. After referring to a 2010 U.S. Supreme Court Case, Otis McDonald, et al. v. City of Chicago, Illinois, et al., and to potential conflicts with provisions of the U.S. Constitution, he surmised that "this issue" would require further litigation. 2:20:49 PM HAL SMITH, M.D., mentioning that he's an emergency room physician who's seen his share of gun violence, characterized HB 69 as blatant and unnecessary nose-thumbing at the federal government. Referring to firearm-related deaths and massacres that have occurred since [the terrorist attacks of September 11, 2001], he suggested that rather than broadly challenging the federal government on "this issue," the legislature should instead focus on finding ways to support reasonable laws that would keep firearms away from the wrong people. In conclusion, he said he opposes HB 69. CHAIR KELLER, after ascertaining that no one else wished to testify, closed public testimony on HB 69. He mentioned that the bill would be held over to allow the sponsor time to address [the issue of retroactivity] via a forthcoming committee substitute (CS). REPRESENTATIVE MILLETT, mentioning that she's provided members with articles regarding low gun-violence rates in Alaska, offered her belief that a one-size-fits-all approach by the federal government regarding gun legislation won't work in Alaska, and characterized protecting people's right to keep and bear arms as incredibly important to Alaska. CHAIR KELLER relayed that HB 69 would be held over [with the motion to adopt Version N as the working document left pending]. HJR 4 - OPPOSE GUN CONTROL ORDERS & LEGISLATION  2:25:46 PM CHAIR KELLER announced that the next order of business would be HOUSE JOINT RESOLUTION NO. 4, Urging the President of the United States to rescind 23 executive orders related to regulation of firearms; and urging the United States Congress to refrain from passing legislation that restricts the right of individuals to keep and bear arms. [Included in members' packets were two proposed committee substitutes for HJR 4: Version 28-LS0362\U, Strasbaugh, 2/6/13; and Version 28-LS0362\N, Strasbaugh, 2/8/13.] 2:26:15 PM REPRESENTATIVE LYNN moved to adopt the proposed committee substitute (CS) for HJR 4, Version 28-LS0362\N, Strasbaugh, 2/8/13, as the working document. CHAIR KELLER objected. REPRESENTATIVE MILLETT, as the sponsor of HJR 4, explained that Version N now references executive orders, executive actions, and executive recommendations; now no longer contains a WHEREAS clause stating, "the United States Congress could more effectively curb gun violence by focusing its efforts on programs that help identify and treat mentally ill persons instead of banning certain types of firearms and high capacity ammunition magazines; and"; [and now contains a WHEREAS clause stating, "Alaska has one of the highest rates of gun ownership in the nation but one of the lowest rates of gun crimes in the nation; and"]. REPRESENTATIVE MILLETT suggested that Version N also be changed so that the "BE IT RESOLVED" clause of the resolution would reference "the" executive orders, executive actions, and executive recommendations related to regulation of firearms, rather than specifically referencing "23" such executive orders/actions/recommendations. Such a change would reflect the legislature's recognition that perhaps not all 23 of the executive orders, executive actions, and executive recommendations referenced elsewhere in the resolution address the regulation of firearms and thus may not necessarily be things that the legislature would want to urge the President to rescind. 2:31:32 PM ALFRED McKINLEY, SR., remarking that he's not read of any specific action being taken by the federal government, referred to the Second Amendment to the U.S. Constitution and the constitutional right to keep and bear arms, noted that HJR 4 contains a reference to semiautomatic assault weapons, mentioned that his firearms are kept locked up in a safe so as to prevent them from falling into the wrong hands, relayed that he uses firearms for both protection and hunting, opined that everyone should keep their firearms locked up, explained that he's served in the military and received awards for being an expert rifleman, and indicated favor with what the legislature is doing. 2:38:41 PM BOB BIRD - indicating a preference for firearm-related school policies to be addressed at the local level, rather than at the state or federal level - said he supports HJR 4. 2:43:14 PM MIKE COONS suggested that HJR 4 be changed to include a clause expressing disapproval of what he termed "the universal background check" and [related] databases. CHAIR KELLER closed public testimony on HJR 4, and then reopened it. 2:47:55 PM RICHARD SVOBODNY, Deputy Attorney General, Central Office, Criminal Division, Department of Law (DOL), in response to a question, said the DOL doesn't have a position on HJR 4, and pointed out that the President had issued 23 statements, not 23 executive orders. CHAIR KELLER again closed public testimony on HJR 4; removed his objection to the motion to adopt Version N as the working document; and, noting that there were no further objections, announced that Version N was before the committee. 2:49:13 PM REPRESENTATIVE MILLETT made a motion to adopt Amendment 1, to delete the number, "23" from page 3, line 7, and replace it with the word, "the". There being no objection, Amendment 1 was adopted. 2:49:40 PM REPRESENTATIVE LYNN moved to report the proposed committee substitute (CS) for HJR 4, Version 28-LS0362\N, Strasbaugh, 2/8/13, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHJR 4(JUD) was reported from the House Judiciary Standing Committee. HB 83 - FEDERAL REGULATIONS & EXECUTIVE ORDERS  2:50:11 PM CHAIR KELLER announced that the final order of business would be HOUSE BILL NO. 83, "An Act relating to certain federal statutes, regulations, presidential executive orders, and secretarial orders; relating to the duties of the attorney general; and providing for an effective date." 2:50:30 PM JIM POUND, Staff, Representative Wes Keller, Alaska State Legislature, on behalf of the sponsor, Representative Keller, explained that HB 83 would clarify in Alaska statute that a federal statute, [federal] regulation, presidential executive order, or secretarial order that is unconstitutional or that was not properly adopted in accordance with federal statutory authority may not be considered to preempt Alaska law. He offered his belief that many [federal statutes, federal regulations, presidential executive orders, and secretarial orders] have resulted in Alaska's economy being brought to all but a screeching halt, and that many don't comply with either the U.S. Constitution or the basic rules pertaining to their adoption. Under HB 83, when a federal statute, [federal] regulation, presidential executive order, or secretarial order is considered to be unconstitutional or improperly adopted, the attorney general shall notify the chairs of the House and Senate committees having jurisdiction over judicial matters - the House and Senate Standing Judiciary Committees. Being provided this information would give [the legislature] the opportunity to determine how to proceed. In conclusion, he relayed that [the sponsor] would appreciate the committee's support of HB 83. CHAIR KELLER, as the sponsor of HB 83, said that from his perspective, there seem to be more and more [federal] laws that are [constitutionally] questionable. The bill would enable the legislature to become involved in instances where the attorney general becomes aware of any such [laws]. REPRESENTATIVE GRUENBERG, noting that court decisions can impact [federal] laws, ventured that perhaps they ought to add judicial decisions to the list of items that the attorney general shall review and report on. 2:57:39 PM DAVID JONES, Senior Assistant Attorney General, Opinions, Appeals, & Ethics Section, Civil Division (Anchorage), Department of Law (DOL), in response to a question, said that under HB 83 as currently written, [the attorney general] would be required to notify the aforementioned legislative committees of potential constitutional problems, when discovered, that may have a preemptive effect [on state law]. Without the bill, such notification might not occur in the normal course, and so to that extent, [the attorney general's] workload would increase under the bill. REPRESENTATIVE GRUENBERG suggested that perhaps the bill should be changed to instead require legislative Legal and Research Services to conduct the reviews, rather than the attorney general. CHAIR KELLER acknowledged that although the Department of Law (DOL) is tasked with protecting Alaskans, conducting reviews of what's occurring at the federal level in light of that task would be new. In conclusion, he relayed that HB 83 would be held over. 3:01:24 PM ADJOURNMENT  There being no further business before the committee, the House Judiciary Standing Committee meeting was adjourned at 3:01 p.m.