ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 25, 2006
1:09 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Pete Kott
Representative Peggy Wilson
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 321
"An Act relating to high risk operation of a motor vehicle,
aircraft, or watercraft while under the influence of an
alcoholic beverage, inhalant, or controlled substance and to
refusal to submit to a chemical test."
- HEARD AND HELD
HOUSE BILL NO. 318
"An Act limiting the exercise of eminent domain."
- HEARD AND HELD
SENATE BILL NO. 132(efd fld)
"An Act relating to complaints filed with, investigations,
hearings, and orders of, and the interest rate on awards of the
State Commission for Human Rights; and making conforming
amendments."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 314
"An Act relating to defense of self, other persons, and
property."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 321
SHORT TITLE: AGGRAVATED DRUNK DRIVING
SPONSOR(S): REPRESENTATIVE(S) RAMRAS
01/09/06 (H) PREFILE RELEASED 12/30/05
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
01/18/06 (H) JUD AT 1:00 PM CAPITOL 120
01/18/06 (H) Scheduled But Not Heard
01/25/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 318
SHORT TITLE: LIMITATION ON EMINENT DOMAIN
SPONSOR(S): REPRESENTATIVE(S) MCGUIRE, HOLM, HAWKER
01/09/06 (H) PREFILE RELEASED 12/30/05
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
01/11/06 (H) JUD AT 1:00 PM CAPITOL 120
01/11/06 (H) Heard & Held
01/11/06 (H) MINUTE(JUD)
01/25/06 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE JAY RAMRAS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 321.
JANE PIERSON, Staff
to Representative Jay Ramras
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 321 on
behalf of the sponsor, Representative Ramras.
RON TAYLOR, Coordinator
Alcohol Safety Action Program (ASAP)
Prevention and Early Intervention Section
Division of Behavioral Health (DBH)
Department of Health and Social Services (DHSS)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 321, provided
comments, suggested changes, and responded to questions.
CRAIG JOHNSON, Staff
to Representative Lesil McGuire
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 318 on behalf of
Representative McGuire, one of the bill's prime sponsors,
described the changes incorporated into the proposed CS for
HB 318, Version L, and responded to questions.
RUTH BLACKWELL
Alaska Association of Realtors (AAR)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 318.
PETER PUTZIER, Senior Assistant Attorney General
Transportation Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 318.
KEVIN C. RITCHIE, Executive Director
Alaska Municipal League (AML)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 318, provided
comments and suggested changes.
CHIP WAGONER, President
Southeast Alaska Board of Realtors
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 318, provided
comments on behalf of both the Southeast Alaska Board of
Realtors and the Alaska Board of Realtors.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:09:39 PM. Representatives
McGuire, Coghill, Wilson, and Gara were present at the call to
order. Representatives Anderson, Kott, and Gruenberg arrived as
the meeting was in progress.
HB 321 - AGGRAVATED DRUNK DRIVING
1:11:05 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 321, "An Act relating to high risk operation
of a motor vehicle, aircraft, or watercraft while under the
influence of an alcoholic beverage, inhalant, or controlled
substance and to refusal to submit to a chemical test."
[Included in committee packets was a proposed committee
substitute (CS) for HB 321, Version 24-LS1099\F, Luckhaupt,
1/16/06.]
REPRESENTATIVE JAY RAMRAS, Alaska State Legislature, sponsor of
HB 321, offered his understanding that a string of fatalities
related [to drunk driving] a few years ago in Anchorage was the
genesis for House Bill 4 [adopted in 2002], and said the same
sort of situation has recently arisen in Fairbanks; after
attending several meetings this summer, many of which were
sponsored by Mothers Against Drunk Driving (MADD), he said he is
now considering various remedies for the problem of traffic
fatalities caused by people who have consumed so much alcohol
that they can't make a distinction between a moving vehicle and
a stationary vehicle, between a stop sign and no stop sign, and
between a red light and a green light.
REPRESENTATIVE RAMRAS said that such people drink to such an
extent that they become an enormous hazard to others in the
community. In researching the issue, he relayed, he's come to
understand that 31 states have adopted a policy regarding "high
risk operation of a motor vehicle." A government has the
authority to discourage certain behavior and punish those who
violate the law. He noted that he operates liquor licenses, and
said that this has given him insight into the psychology of
those who choose to consume alcohol and then operate a motor
vehicle regardless of their blood alcohol concentration (BAC).
REPRESENTATIVE RAMRAS went on to describe some of the programs
currently in place that are intended to stop "over-serving." He
offered his understanding that statistics illustrate that with
regard to the aforementioned type of fatality, they are
disproportionately caused by those that have consumed an
enormous amount of alcohol. House Bill 321 is intended to
address this problem. The three deterrents against driving
under the influence (DUI) that government currently utilizes
include pressing certain criminal charges if another person is
killed or seriously injured, levying fines, and imposing jail
time. He acknowledged that when one leaves a drinking
establishment, he/she doesn't drive away with the intention of
hurting anyone, nor does he/she keep the possible financial
ramifications in mind until it is too late. He therefore
characterized the possibility of going to jail as the most
effective of the aforementioned three deterrents to DUI.
1:18:28 PM
REPRESENTATIVE RAMRAS opined that consuming enough alcohol so as
to have a .16 BAC is unacceptable behavior, and the bill
proposes to double the amount of jail time for DUI with a BAC of
.16. He suggested that public service announcements (PSAs) will
go a long way towards informing people that if they drive under
the influence with double the legal BAC, they will be subject to
double the jail time. He offered his belief that adoption of HB
321 will lead to fewer fatalities and to better behavior on the
part of people who drink, and relayed that MADD, Cabaret Hotel
Restaurant & Retailer's Association (CHARR), and wholesale
distributors [of alcohol] have endorsed [the bill].
REPRESENTATIVE RAMRAS acknowledged that the sponsor of House
Bill 4 has expressed concern regarding the fiscal ramifications
of HB 321. He opined, however, that [the legislature] must find
a way to prevent people with a BAC of .16 from DUI. He
explained that under HB 321, for example, the crime of DUI with
a BAC of .16 or greater would subject a person to a minimum
mandatory sentence of 6 days for a first offense, 40 days for a
second offense, [80 days for a third offense], and so on. He
offered his understanding that the Transportation Equity Act for
the 21st Century, amended Sec. 410, Alcohol-impaired [driving]
countermeasure incentive grant may be available to the state.
Because people are afraid of going to jail, he remarked,
[increasing the amount of jail time a person would be subject
to] will result in safer roads.
CHAIR McGUIRE asked whether the sentencing guidelines of the
aforementioned other 31 states are the same as what is being
proposed via HB 321.
REPRESENTATIVE RAMRAS relayed that a BAC of .15 is considered
more of a national standard, but from a marketing standpoint, he
said he thought that to provide for, "double the BAC, double the
jail time" would be a much simpler concept for people to grasp.
The goal of HB 321, he added, is to deter people who are really
drunk from getting in their cars. Although the sentencing
standards vary in the aforementioned 31 states, they all have a
significantly higher [penalties] for a higher BAC level; he
mentioned that members' packets include a summary produced by
the National Conference of State Legislatures (NCSL)
illustrating what the standards are in those states.
1:23:20 PM
CHAIR McGUIRE said she wants to ensure that the penalties for
DUI are appropriate. She asked Representative Ramras whether he
can provide the committee with evidence either that the laws
adopted over the last six year pertaining to this issue aren't
working or that society would be better served by strengthening
the penalties yet again. It always sounds great to say, "Let's
be tough on drunk drivers," she noted, but they must also ensure
that the benefits of having the proposed stiffer penalties will
be worth the cost to the state to prosecute and then incarcerate
violators.
REPRESENTATIVE RAMRAS said he is not interested in hearing
public testimony from victims regarding this issue because it
will merely underline his point, though he mentioned that he has
requested further information from the Department of Public
Safety (DPS) and the Department of Corrections (DOC). He
reiterated his view that jail time is the single most effective
deterrent to DUI. He opined that although Minnesota has a [high
risk] BAC threshold of .20, strong sanctions have made it
effective and have lowered recidivism and refusal rates among
"high BAC first time offenders." He characterized HB 321 as the
correct policy to pursue, and offered his belief that they need
to further dissuade people who are already problem drinkers from
DUI.
1:28:02 PM
REPRESENTATIVE GARA offered his belief that having a BAC of .15,
.14, or even .13 is unacceptable. Why, therefore, does the bill
propose a threshold of .16 BAC?
REPRESENTATIVE RAMRAS noted that the "local chapter" of MADD
initially opposed the bill because it felt that establishing a
threshold of .16 was too high since one couldn't draw a
distinction between legally drunk and really drunk, but was
persuaded to support the bill because of input and statistics
received from other MADD chapters nationwide. He reiterated
that he'd selected a .16 threshold because it will be easy for
people to understand a PSA that says, "double the blood alcohol
[concentration], double the jail time." He said he thinks that
Alaska has one of the toughest, strongest, and best set of DUI
laws, and that HB 321 will further strengthen those laws and
make the community safer. There is a segment of the population
that already drinks to excess, and something needs to be put in
place that will make those people think harder about their
behavior, he offered.
1:32:24 PM
REPRESENTATIVE GARA said he is concerned about the proposed
advertisement campaign because there might be a tendency for
people to think its okay to drive drunk at a BAC lower than .16.
"I want them to focus on [.14 BAC], I want them to focus on [.12
BAC]; I don't want to take out an ad campaign, saying, 'Don't
worry about it 'til you're at [.16 BAC],'" he remarked. He
surmised that a first time offense could be construed as merely
an inconvenience because currently it only subjects a person to
3 days in jail, and suggested that an alternative to the
language currently being proposed via the bill would be to
instead establish a longer mandatory sentence for a first time
offense unless the defendant can prove with substantial evidence
that he/she only deserves to spend 3 days in jail.
REPRESENTATIVE RAMRAS said he is attempting to reach those who
are the worst offenders, the repeat offenders who despite all
the penalties, fines, and jail time, continue to drive under the
influence. When people chose to drink beyond the current .08
BAC limit, it wrecks a lot of lives, he remarked, and again
reiterated his belief that an effective deterrent for those who
have already surrendered their rational thought processes will
be more jail time.
REPRESENTATIVE WILSON said she is pleased with the bill,
particularly with the provisions regarding fines. Alaska has
the [dubious] honor of being number one with regard to alcohol
abuse, and [alcoholism] is costing the state huge amounts of
money; therefore, she opined, the legislature must do something
about this issue, both from a safety standpoint and from a
financial standpoint.
1:38:52 PM
REPRESENTATIVE GRUENBERG asked for clarification regarding the
last [sentence] in the sponsor statement: "This legislation
allows professional servers to renew their alcohol server
education cards, by demonstrating their knowledge by passing the
written test without having to retake the introductory course".
JANE PIERSON, Staff to Representative Jay Ramras, Alaska State
Legislature, sponsor, indicated on behalf of Representative
Ramras that that sentence was not meant to apply to HB 321.
REPRESENTATIVE RAMRAS concurred.
REPRESENTATIVE GRUENBERG referred to the fiscal notes and
characterized the one provided by the Department of Law (DOL) as
being much more honest than the one provided by the DPS, which
he further characterized as being inaccurate; he asked the
sponsor to discuss this issue with the DPS and seek out a
corrected fiscal note. He then said it appears that the main
difference in the proposed committee substitute (CS) included in
committee packets is that the maximum that can be charged to
cover the cost of imprisonment is being raised from $2,000 to
$4,000; this language is located [in Sections 2 and 4].
MS. PIERSON concurred with the latter point.
1:41:46 PM
REPRESENTATIVE GRUENBERG made a motion to adopt the proposed CS
for HB 321, Version 24-LS1099\F, Luckhaupt, 1/16/06, as the work
draft. There being no objection, Version F was before the
committee.
REPRESENTATIVE GRUENBERG characterized the aforementioned change
as being entirely reasonable. He mentioned that he is
concerned, however, that the repeal of AS 28.35.032(i) - via
Section 5 of the bill - is a mistake.
[Ms. Pierson's answer was inaudible.]
REPRESENTATIVE RAMRAS, referring to Representative Wilson's
comment, relayed that the current fine schedule is not being
changed via HB 321; rather, it is only the amount of jail time
that is being increased, the thought being that jail time is
just as inconvenient for affluent offenders as for those with
more modest incomes.
1:45:06 PM
RON TAYLOR, Coordinator, Alcohol Safety Action Program (ASAP),
Prevention and Early Intervention Section, Division of
Behavioral Health (DBH), Department of Health and Social
Services (DHSS), said he is pleased to see HB 321 come forward.
The DHSS has long viewed "high risk" drivers as posing a greater
public safety risk and using up enormous amounts of resources.
Referring to earlier stated concerns, he said that according to
statistics gathered by the Division of Motor Vehicles (DMV) for
2004 through 2005, the number of DUI [arrests] dropped from
5,107 to 4,312; therefore, he surmised, [current] DUI laws are
having a very positive effect.
MR. TAYLOR, referring to another earlier stated concern, offered
his understanding that a comprehensive look has not yet been
taken at all the DUI laws; instead, changes have been made on a
continuing basis. Alaska is one of the top states in terms of
having uniform DUI laws; for example, a first time DUI offense
is considered a first time DUI offense all across the state. He
said he has statistics illustrating that over 60 percent of DUI
offenders have BAC levels in excess of .15, and suggested that
the state has been remiss in addressing this particular type of
offender. He said it is important for these types of offenders
to be held accountable, particularly given the enormous cost to
public safety, to the criminal justice system, and to health and
social services entities that their behavior results in.
MR. TAYLOR said one of the recommendations the [DHSS] made in
its fiscal analysis of the bill was to "increase everything"; a
very clear message needs to be sent that the behavior of high
risk drivers must be deterred. He suggested that the committee
change the BAC threshold in the bill so that it mirrors the
national high risk BAC threshold of .15; this would conform
Alaska's law to the National Highway Traffic Safety
Administration's (NHTSA's) definition of a high risk driver. He
also suggested that the committee proportionally increase the
jail time, fines, and DMV reinstatement fees. The [extra] money
could then be used to offset the bill's fiscal note.
MR. TAYLOR opined that [the bill] should also clarify who
qualifies as a high risk driver. For example, he remarked, if
he were a third time DUI offender and had a BAC above .15 only
on that third offense, would he be subject to the aggravated
penalty at that point, or would he have to have had a BAC level
above .15 for the prior two DUI convictions. He relayed that
the DHSS recommends that a portion of the [fines and fees] go
back to the ASAP, the Prevention and Early Intervention Section
of the DBH, and various traffic safety programs. He indicated
that this latter point merely mirrors sentiments that the
department has heard the legislature expressing. In conclusion,
he said that the department thinks that the benefits of passing
HB 321 [with the suggested changes] will allow it to be in
compliance with the NHTSA's programmatic criteria - which
include, for example, passing a "high risk" bill that stipulates
a BAC level of .15 - and thereby qualify for highway safety
traffic incentive grants.
1:52:06 PM
CHAIR McGUIRE asked whether Alaska would qualify for those
grants if the bill states a BAC of .16.
MR. TAYLOR offered his understanding that the programmatic
criteria says that a state must adopt a law that imposes
stronger sanctions or additional penalties for high risk drivers
who's BAC is .15 or more.
REPRESENTATIVE GRUENBERG asked Mr. Taylor to provide his
comments, statistics, and any suggested changes to the committee
in writing.
MR. TAYLOR agreed to do so.
CHAIR McGUIRE asked that those items also be sent to the bill's
sponsor.
1:55:19 PM
REPRESENTATIVE GRUENBERG again asked the sponsor to deal with
the issue of the fiscal notes.
REPRESENTATIVE RAMRAS agreed to do so. With regard to the
portion of statute being repealed by Section 5 of the bill, he
explained that AS 28.35.032(i) applies to the crime of refusing
to submit to a chemical test, and said he would further research
the issue of why they should repeal that provision. He also
offered his belief that federal monies would still be available
to states as long as they have a BAC threshold between .15
and .20.
REPRESENTATIVE GARA asked Mr. Taylor to provide the committee
with statistics that encompass more than the last two years.
MR. TAYLOR agreed to do so.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 321. She relayed that HB
321 [Version F] would be held over.
HB 318 - LIMITATION ON EMINENT DOMAIN
1:57:38 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 318, "An Act limiting the exercise of eminent
domain." [Before the committee was the proposed committee
substitute (CS) for HB 318, Version 24-LS1083\Y, Bullock,
1/11/06, which was adopted as a work draft on 1/11/06; also in
committee packets was a proposed CS for HB 318, Version 24-
LS1083\L, Bullock, 1/24/06.]
1:58:19 PM
CRAIG JOHNSON, Staff to Representative Lesil McGuire, Alaska
State Legislature, one of the prime sponsors of HB 318, relayed
on behalf of Representative McGuire that the two main policies
being addressed by HB 318 are whether taking a person's private
property for economic development is justified and whether it is
appropriate to take a person's personal property - a home - for
recreational purposes. He then referred to the proposed CS,
Version L, and explained that Section 1 of the bill now defines
"economic development" and "public use".
MR. JOHNSON also explained that Section 3 now defines "economic
development" and "personal residence"; no longer has a provision
authorizing the commissioners of the Department of Natural
Resources (DNR), the Department of Transportation & Public
Facilities (DOT&PF), the Department of Commerce, Community, &
Economic Development (DCCED), and the Department of Military &
Veterans' Affairs (DMVA) to approve the use of eminent domain in
certain situations; now provides an exception for property
transferred to a common carrier instead of an exception for
property transferred to a person available for public hire to
transport freight or passengers - this change was prompted by
the fact that "common carrier" is already defined in statute;
and now contains a paragraph (7) that provides an exception for
property which is found by the governor to be necessary for a
public use not specifically already authorized by other
provisions of statute, though use of this exception must also be
approved by the legislature.
MR. JOHNSON remarked that this paragraph (7) somewhat replaces
the provision regarding the commissioners and is intended to
cover unforeseen circumstances in which the use of eminent
domain would be necessary. He then indicated that the remainder
of the changes in Version L are [technical changes].
2:01:22 PM
CHAIR McGUIRE noted that with regard to paragraph (7) of Section
3, because one legislature cannot bind another, any future
legislature has the ability to repeal or amend this proposed
provision should it so desire. Remarking that she is not
completely [wedded] to the idea of retaining that exception,
she, too, mentioned that it would allow the administration
flexibility should any as yet unforeseen circumstance arise
wherein it thinks that the use of eminent domain is necessary,
and that an official request for approval must be made to the
legislature regarding such use.
2:02:17 PM
REPRESENTATIVE WILSON moved to adopt the proposed CS for HB 318,
Version 24-LS1083\L, Bullock, 1/24/06, as the work draft. There
being no objection, Version L was before the committee.
MR. JOHNSON, in response to a question, relayed that paragraph
(7) might be used, for example, in a situation involving a very
popular proposal to create a bike trail in an organized borough
but not all property owners are willing to turn over their
property. He suggested that including this exception will give
the administration a certain level of comfort.
2:04:29 PM
REPRESENTATIVE GRUENBERG indicated that he was expecting to see
a provision allowing local governments to institute a similar
exception.
MR. JOHNSON said he'd not been comfortable asking the drafters
to include something of that nature into the bill because that
would be a policy call for the legislature to make.
REPRESENTATIVE GRUENBERG indicated that he would like to address
that issue further.
CHAIR McGUIRE said she has concerns with granting local
governments the ability to say that state law doesn't apply; if
the law, and the legislature's intent, is that private property
cannot be taken from one individual and given to another for
economic development purposes or that a private residence cannot
be taken away for recreational purposes, then there probably
shouldn't be a huge loophole for local governments to take
advantage of, notwithstanding her stance as a proponent of local
control. She characterized this as a policy call for the
legislature to make.
REPRESENTATIVE GRUENBERG, remarking that he'd like more time and
input from concerned parties in order to draft a possible
amendment on this issue, said that the question for him is, "Who
decides?" Should the legislature decide the issue for local
governments, or should municipalities decide the issue? Does
the legislature want to start down the path of deciding zoning
issues? He mentioned that he would not want the federal
government or the state legislature deciding issues involving
his own neighborhood or his house.
2:09:06 PM
REPRESENTATIVE GARA opined that the bill should prevent one
private individual from convincing the government to use the
power of eminent domain to take private property from another
private individual. He suggested that using eminent domain to
take private property for economic development purposes should
only be allowed when absolutely necessary for a particular
project, and any provisions allowing exceptions to the
prohibition against using eminent domain should be limited to
just those circumstances.
MR. JOHNSON noted that according to conversations he's had with
the Department of Law (DOL), a demonstration of necessity is
already required in order to take property via eminent domain.
REPRESENTATIVE COGHILL indicated that he would like to make sure
that the state's process of exercising eminent domain doesn't
conflict with how municipalities exercise it. The legislature
has already made a policy statement that local governments have
the right to exercise eminent domain, he remarked, and there is
a legitimate state interest in this issue.
2:12:41 PM
CHAIR McGUIRE ventured her belief that the Alaska Municipal
League's (AML's) position is that it would prefer to leave
decisions regarding eminent domain to local governments. One
policy question to resolve is whether it is appropriate for the
legislature to take a stance on the issue of when and for what
purposes eminent domain shall be exercised in the state, whether
by state government or municipal government, to take private
property from one private entity and transfer it to another
private entity for economic development purposes; this was the
issue raised as a result of the decision in the U.S. Supreme
Court case, Kelo v. City of New London. If the answer to that
policy question is yes, then they must be careful to not create
loopholes in the bill.
CHAIR McGUIRE noted that AS 09.55.240 already spells out the
existing authorized uses for eminent domain, and that the bill
is not trying to take away a municipality's right to exercise
eminent domain over its public lands or over federal public
lands; instead, the issue is whether private land can be taken
from one private entity and given to another private entity for
economic development purposes as was done in the Kelo situation.
She indicated that she disagrees with the policy [espoused] by
the court in Kelo and would like to make a bold statement to
that effect.
REPRESENTATIVE COGHILL said he is merely concerned about the
impact of the proposed exceptions, and offered his belief that
in both AS 09.55.240 and AS 09.55.260, the legislature has
clearly said that the right of eminent domain exists under the
circumstances listed therein.
2:17:20 PM
REPRESENTATIVE GRUENBERG said he doesn't want either the federal
government or local governments making a decision regarding what
the state does with its land. With regard to local governments,
if the voters in a municipality don't like its decisions
regarding the use of eminent domain, they can seek remedy at the
local level. He remarked, "I think the municipalities should
decide municipal seizures, Feds should decide federal seizures,
and we should decide state seizures"; it's not just who decides,
but who decides for what kind of seizure. Referring to page 4,
lines 11-14, he noted that this language is giving the governor
some authority on this issue, and so it could be that a governor
could to do something or refuse to do something in conflict with
the legislature's wishes. Does the legislature want to tie up
its authority with the governor's in such instances, he
pondered.
CHAIR McGUIRE referred to paragraph (7) of Section 3 and
remarked that the more she thinks about it the more she
considers that provision to be unnecessary and distracting,
particularly given that at any point in time the legislature can
enact legislation that would completely overturn this proposed
legislation. She indicated that she is considering making an
amendment to remove [paragraph (7)].
REPRESENTATIVE GARA said he aggress with Chair McGuire's
comments, and suggested that subsection (e) of Section 3 will
engender debate; that language reads:
The power of eminent domain may not be exercised for
the purpose of developing a recreational facility or
project if the property to be acquired includes an
individual landowner's primary personal residence or
that portion of an individual's property attached to
and within 1,000 linear feet of an individual
landowner's personal residence.
REPRESENTATIVE GARA said he would like for government to have
the ability to assist [individuals and groups] in gaining public
access to fishing and boating streams, hunting trails, and
perhaps even trails.
MR. JOHNSON clarified that the term "1,000 linear feet" was put
in as "a holding point," but added that he is not sure that
1,000 feet is the correct number; he suggested that perhaps it
should instead be "100 linear feet", "250 linear feet", or "300
linear feet". It ought to be possible, he remarked, to gain
access for the aforementioned recreational purposes without
taking someone's home; with only 1 percent of Alaska's lands
being in private hands, taking someone's home is an egregious
step. Lowering the amount of land listed on page 4, line 18,
could be a good first step towards alleviating the concerns of
those opposed to that provision, while still allowing Alaskans
access to things like fishing and boating streams, hunting
[areas], and trails.
2:27:19 PM
REPRESENTATIVE GARA pointed out, though, that in addition to
having access to a fishing stream, one still needs to be able to
walk along the bank of a fishing stream.
MR. JOHNSON offered his understanding that the state already
owns "those lands," and so the public would have access to them.
In response to a comment, he explained that a recreational cabin
would not be considered a "residence" for purposes of the bill.
CHAIR McGUIRE clarified that she is setting slightly different
thresholds for the two main aspects of the bill. In the case of
economic development, the bill seeks to preclude the transfer of
private land from one private entity to another private entity;
in the case of recreational use, the bill seeks to preclude the
transfer of private land if that private land is land upon which
one has a residence as defined in the bill. She said she
doesn't feel that it's appropriate to simply say that economic
development is an inappropriate purpose for which to take away
private property while also saying that recreational use is an
[appropriate] purpose.
2:30:10 PM
RUTH BLACKWELL, Alaska Association of Realtors (AAR), relayed
that since the Kelo decision, both the AAR and the National
Association of Realtors (NAR) have been working to ensure that
private property rights are upheld, and have come up with three
general policy decisions: use of eminent domain only when
necessary to materially advance real or substantial public use -
for example, roads, airports, power lines, public buildings;
government should provide persuasive, objective evidence that
the project and the resulting use will in fact be reached; and
just compensation should include not only the value of the
condemned property but also the other reasonable and necessary
costs engendered by the condemnation.
MS. BLACKWELL said that the AAR is in favor of the portion of
the bill pertaining to the transfer of property [for economic
development purposes] and is happy with the definitions of
"economic development" and "public use". However, the AAR is
concerned about the provision that precludes the transfer of
land for recreational use purposes only when that land contains
a primary personal residence. The AAR would hate to see those
that have put their heart and soul into the building of a cabin
or campsite lose their land through the use of eminent domain
just to provide public access to others. She suggested that
[the language in subsection (e) be changed] so that it doesn't
pertain to just residences.
REPRESENTATIVE GARA remarked that the question becomes one of
whether, 20 years from now, as the population increases, the
public will be able to access fishing streams.
REPRESENTATIVE COGHILL expressed a preference for leaving
property owners alone while still attempting to ensure that the
public has access to [fishing streams, hunting areas, and
trails].
REPRESENTATIVE GRUENBERG remarked that the issue of ensuring
public access is quite different in rural areas than it is in
urban areas, and again suggested that each local area should be
allowed decide this issue for itself.
2:42:22 PM
PETER PUTZIER, Senior Assistant Attorney General, Transportation
Section, Civil Division (Juneau), Department of Law (DOL),
offered his belief that subsection (d)(7) will not work as
currently drafted, and opined that the bill should contain
language authorizing the transfer of private property from one
private entity to another under certain circumstances. He then
offered examples of situations in which the state might wish to
allow the transfer of private property from one private entity
to another for economic development purposes.
REPRESENTATIVE GARA said of those examples that they involve
exactly the types of situations for which he wouldn't want to
allow the use of eminent domain and are the very reason for
introducing the bill.
REPRESENTATIVE GRUENBERG asked Mr. Putzier to provide written
suggestions for change to the committee.
MR. PUTZIER agreed to do so.
REPRESENTATIVE GRUENBERG referred to page 3, line 24, and
suggested that perhaps the term, "private person or entity"
should be changed to "private person or private entity".
However, doing so would imply that "private person" and "private
entity" are different terms. He noted that "private entity" is
not yet defined in the bill, and questioned whether it ought to
be if it is not the same as "private person".
MR. PUTZIER acknowledged that that is another issue the DOL
would like to see addressed.
2:49:40 PM
KEVIN C. RITCHIE, Executive Director, Alaska Municipal League
(AML), said the AML would support the state taking a stand on
this issue as long as that stand works for communities as well
as it works for the state, and appreciates the narrowing of the
bill so that it addresses only the issues raised by the Kelo
decision with regard to economic development. Jobs are really
important in Alaska, and probably not enough economic
development is being done. With regard to subsection (d)(7), he
offered his understanding that although it might provide a
municipality the ability to transfer land for a project that the
majority of the residents support, the process would be
cumbersome.
MR. RITCHIE recommended that the statute be altered so that it
is no longer silent on the issue of delegating eminent domain
authority to a private nonprofit corporation, specifically that
the authority remain with the local government; for example, add
a simple statement that eminent domain [authority] may not be
transferred or delegated. Furthermore, the statute could be
changed to specify that if the legislature passes a law to
override the aforementioned proposed statement, then a local
government would also have to pass a similar law. Historically,
he relayed, municipalities have been very protective of property
rights. In conclusion, he offered to help committee staff draft
these suggested changes.
REPRESENTATIVE GRUENBERG asked Mr. Ritchie for written
suggestions and comments.
MR. RITCHIE agreed to provide them.
REPRESENTATIVE GRUENBERG noted that Article II, Section 19, of
the Alaska State Constitution prohibits the legislature from
passing local or special acts if a general act can be made
applicable, and that Article X of the Alaska State Constitution
provides for maximum local self-government. He pondered whether
[adding certain provisions to statute] might run afoul of
Article X. He asked Mr. Ritchie to research these issues
further.
REPRESENTATIVE GARA asked for examples of municipalities using
eminent domain.
MR. RITCHIE said that the AML did query a number of communities
with regard to whether they've had problems with eminent domain,
but has not received any indication that there have been any
problems. He agreed to research that issue further.
2:57:00 PM
CHIP WAGONER, President, Southeast Alaska Board of Realtors,
relayed that he is also speaking at the request of the chairman
of the Alaska Board of Realtors' Legislative Committee. He said
he supports Ms. Blackwell's comments and appreciates the
introduction of the bill. The question, he posited, is whether
[the legislature] wishes to address more than just the issues
raised by the Kelo decision, particularly given that there are
some sections of the eminent domain statutes that have not been
altered since the '60s. He noted that he also owns a remote
piece of property in Southeast Alaska - an island - and that he
would hate to see the government take a portion of that. People
who own remote properties, particularly when they have a cabin
on them, feel more emotional about those properties than they do
about their own personal residences, he opined.
MR. WAGONER suggested that another way of approaching the issue
would be to consider instituting higher standards when the
government wants to use eminent domain for different purposes.
He offered his understanding, for example, that AS 09.55.270
speaks to the standards that the government must use when it
wants to go after property. However, one of the problems is
that the standard of "necessity" is currently undefined, and so
the courts define it [on a case-by-case basis]. He surmised
that as time goes on, the courts will tend to be more and more
liberal in defining this term such that instead of being defined
as "absolute necessity" for the public use, it will be defined
as "requisite necessity".
MR. WAGONER indicated that AS 09.55.270 could be altered such
that if the government is going to go after certain kinds of
property for less of a public use than say a school or a needed
sewer line or something of that nature, the government would
have to have a higher standard. He said that realtors are very
concerned about private property because there is so little of
it in Alaska. He concluded by saying:
The government, when we were a territory in the '50s,
actually took, by court action, a lot of the private
properties in Southeast Alaska, because back in the
['10s], '20s, and '30s, a lot of ... private property
... [was] abandoned. ... And the government, by court
action, took those properties, including the island I
now own. ...
REPRESENTATIVE GRUENBERG asked for suggested changes in writing.
CHAIR McGUIRE concurred that it would be helpful to have
suggestions for change in writing. She indicated that HB 318
[Version L] would be held over.
ADJOURNMENT
3:04:15 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:04 p.m.