ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 30, 2007
1:08 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Ralph Samuels
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present.
COMMITTEE CALENDAR
HOUSE BILL NO. 163
"An Act relating to real property foreclosures, executions, and
deeds of trust."
- MOVED CSHB 163(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 3
"An Act relating to issuance of identification cards and to
issuance of driver's licenses; and providing for an effective
date."
- MOVED CSHB 3(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 151
"An Act requiring an indemnification and hold harmless provision
in professional services contracts of state agencies, quasi-
public agencies, municipalities, and political subdivisions."
- MOVED CSHB 151(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 225
"An Act relating to misconduct involving weapons and bail."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 163
SHORT TITLE: PROPERTY FORECLOSURES AND EXECUTIONS
SPONSOR(s): REPRESENTATIVE(s) RAMRAS
02/28/07 (H) READ THE FIRST TIME - REFERRALS
02/28/07 (H) L&C, JUD
03/30/07 (H) L&C AT 3:00 PM CAPITOL 17
03/30/07 (H) -- MEETING CANCELED --
04/20/07 (H) L&C AT 3:00 PM CAPITOL 17
04/20/07 (H) Moved CSHB 163(L&C) Out of Committee
04/20/07 (H) MINUTE(L&C)
04/23/07 (H) L&C RPT 1DP 4NR
04/23/07 (H) DP: RAMRAS
04/23/07 (H) NR: BUCH, LEDOUX, NEUMAN, OLSON
04/27/07 (H) JUD AT 1:00 PM CAPITOL 120
04/27/07 (H) Heard & Held
04/27/07 (H) MINUTE(JUD)
04/30/07 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 3
SHORT TITLE: REQUIREMENTS FOR DRIVER'S LICENSE/I.D.
SPONSOR(s): REPRESENTATIVE(s) LYNN
01/16/07 (H) PREFILE RELEASED 1/5/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) STA, JUD
02/27/07 (H) STA AT 8:00 AM CAPITOL 106
02/27/07 (H) Scheduled But Not Heard
03/01/07 (H) STA AT 8:00 AM CAPITOL 106
03/01/07 (H) Scheduled But Not Heard
03/06/07 (H) STA AT 8:00 AM CAPITOL 106
03/06/07 (H) Moved Out of Committee
03/06/07 (H) MINUTE(STA)
03/07/07 (H) STA RPT 3DP 2DNP 2NR
03/07/07 (H) DP: JOHNSON, ROSES, LYNN
03/07/07 (H) DNP: GRUENBERG, DOLL
03/07/07 (H) NR: JOHANSEN, COGHILL
03/07/07 (H) FIN REFERRAL ADDED AFTER JUD
04/20/07 (H) JUD AT 1:00 PM CAPITOL 120
04/20/07 (H) Heard & Held
04/20/07 (H) MINUTE(JUD)
04/23/07 (H) JUD AT 1:00 PM CAPITOL 120
04/23/07 (H) Heard & Held
04/23/07 (H) MINUTE(JUD)
04/30/07 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 151
SHORT TITLE: INDEMNITY CLAUSE IN PUBLIC CONTRACTS
SPONSOR(s): REPRESENTATIVE(s) JOHNSON BY REQUEST
02/22/07 (H) READ THE FIRST TIME - REFERRALS
02/22/07 (H) STA, JUD
03/20/07 (H) STA AT 8:00 AM CAPITOL 106
03/20/07 (H) Heard & Held
03/20/07 (H) MINUTE(STA)
03/24/07 (H) STA AT 10:00 AM CAPITOL 106
03/24/07 (H) Moved CSHB 151(STA) Out of Committee
03/24/07 (H) MINUTE(STA)
03/26/07 (H) STA RPT CS(STA) NT 6DP
03/26/07 (H) DP: JOHANSEN, JOHNSON, COGHILL, DOLL,
GRUENBERG, LYNN
04/02/07 (H) JUD AT 1:00 PM CAPITOL 120
04/02/07 (H) Heard & Held
04/02/07 (H) MINUTE(JUD)
04/30/07 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 225
SHORT TITLE: POSSESSION OF WEAPON WHILE ON BAIL
SPONSOR(s): REPRESENTATIVE(s) JOHNSON
03/27/07 (H) READ THE FIRST TIME - REFERRALS
03/27/07 (H) JUD, FIN
04/13/07 (H) JUD AT 1:00 PM CAPITOL 120
04/13/07 (H) Heard & Held
04/13/07 (H) MINUTE(JUD)
04/25/07 (H) JUD AT 1:00 PM CAPITOL 120
04/25/07 (H) Scheduled But Not Heard
04/27/07 (H) JUD AT 1:00 PM CAPITOL 120
04/27/07 (H) <Bill Hearing Canceled>
04/30/07 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
STEPHAN ROUTH, Attorney at Law
Routh & Crabtree, APC
Anchorage, Alaska
POSITION STATEMENT: Testified on a proposed amendment to HB 3.
REPRESENTATIVE LYNN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as sponsor of HB 3.
DUANE BANNOCK, Director
Division of Motor Vehicles (DMV)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Answered questions on HB 3.
LEANNE BOLDENOW, Vice-President
Marsh USA Inc.
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 151.
JAMES CANTOR, Chief Assistant Attorney General - Statewide
Section Supervisor
Transportation Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Provided assistance during discussion of
HB 151.
BOYD MORGENTHALER, P.E., Client Contract Task Force
Alaska Professional Design Council (APDC)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 151.
TREVOR FULTON, Staff
to Representative Craig Johnson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 151 on behalf of the sponsor,
Representative Craig Johnson.
JEANNE OSTNES, Staff
to Representative Craig Johnson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Discussed HB 255 on behalf of the sponsor,
Representative Craig Johnson.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided legal assistance for HB 225.
GERALD LUCKHAUPT, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: Spoke as the drafter of HB 225 and answered
questions.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:08:09 PM. Representatives Dahlstrom,
Coghill, Lynn, Holmes, Gruenberg, and Ramras were present at the
call to order. Representative Samuels arrived as the meeting
was in progress.
HB 163 - PROPERTY FORECLOSURES AND EXECUTIONS
1:08:26 PM
CHAIR RAMRAS announced that the first order of business would be
HOUSE BILL NO. 163, "An Act relating to real property
foreclosures, executions, and deeds of trust." [Before the
committee was the proposed committee substitute (CS) for HB 163,
Version 25-LS0630\K, Bannister, 4/24/07, which had been adopted
as the work draft on 4/27/07.]
CHAIR RAMRAS referred members to page 3, lines 25-26.
1:11:25 PM
STEPHAN ROUTH, Attorney at Law, Routh & Crabtree, APC, stated
that what happens at a foreclosure sale is reinstatement,
wherein the owners pay the delinquent amounts, but the
reinstatement should have happened prior to the auction. Other
states have addressed the problems associated with last minute
reinstatements by moving back the deadline for reinstatement;
for example, Washington has set the reinstatement deadline at 10
days prior to the auction, which in his view, he remarked, was
too long, though it might be acceptable if the deadline were
left at 5 days, or perhaps even reduced to 2 or 3 days. He said
another reason he felt the reinstatement should occur prior to
the auction is to maximize bidding for the benefit of the
borrower, and reiterated his belief that reinstatements should
not be considered at the time of the auction.
STEPHAN ROUTH said he calculated that if the reinstatement date
were left at 5 days, as current law allows, then the minimum
time to complete foreclosure in Alaska would be 120 days, with
90 days for foreclosure, and 30 days after default on the loan.
He explained that the timeframe for a foreclosure does not
include the three-month delinquency period that institutions
typically allow prior to initiating a foreclosure process, which
makes the standard timeframe for the borrower to reinstate
actually closer to six months. Under current law, the parties
have 5 days prior to the sale to reinstate, and in about 97.3
percent of the time the reinstatement time is approximately a
total of 175 days. He said that he would feel satisfied if the
date were moved away from the sale time, which is the auction
date.
REPRESENTATIVE HOLMES asked whether the owner often makes
payment of the foreclosure costs within 48 hours of the auction
time.
STEPHAN ROUTH responded that payment close to the date of sale
does not often happen, but when it does occur it creates big
problems.
REPRESENTATIVE HOLMES asked whether a two-day deadline would be
amenable to Mr. Routh.
STEPHAN ROUTH concurred that a two-day deadline would be
amenable.
REPRESENTATIVE GRUENBERG indicated that he supported a two-day
deadline.
CHAIR RAMRAS, after ascertaining that no one else wished to
testify, closed public testimony on HB 163.
1:15:09 PM
REPRESENTATIVE HOLMES made a motion to adopt a Conceptual
Amendment 1, to replace "five" with "two" on page 3, line 25.
There being no objection, Conceptual Amendment 1 was adopted.
REPRESENTATIVE DAHLSTROM moved to report the proposed CS for HB
163, Version 25-LS0630\K, Bannister, 4/24/07, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 163(JUD) was
reported from the House Judiciary Standing Committee.
HB 3 - REQUIREMENTS FOR DRIVER'S LICENSE/I.D.
1:16:21 PM
CHAIR RAMRAS announced that the next order of business would be
HOUSE BILL NO. 3, "An Act relating to issuance of identification
cards and to issuance of driver's licenses; and providing for an
effective date."
CHAIR RAMRAS announced that public testimony on HB 3 was closed.
REPRESENTATIVE LYNN, as sponsor of HB 3, indicated that since
the bill was last heard, work had been done to address concerns
regarding the grace period.
1:18:07 PM
CHAIR RAMRAS referred to Amendment 1, labeled 25-LS0040\C.4,
Luckhaupt, 4/24/07, which read:
Page 3, line 20:
Delete "expired"
Insert "been expired for more than 12 months"
CHAIR RAMRAS explained that Amendment 1 would give Alaskans
ample opportunity to replace their expired driver's license with
a new driver's license.
1:20:05 PM
DUANE BANNOCK, Director, Division of Motor Vehicles (DMV),
Department of Administration (DOA), concurred [although no
formal motion was made to adopt Amendment 1].
REPRESENTATIVE LYNN objected for the purpose of discussion. He
offered his understanding that non-residents have up to 90 days
to obtain a license.
CHAIR RAMRAS said he believes that is set out in regulation and
would apply to military personnel and new residents.
MR. BANNOCK explained that current statutes provide that persons
are not required to hold an Alaska driver's license if they are
in the state for less than 90 days, and stipulate that persons
are required to have a driver's license if they reside in the
state longer than 90 days.
REPRESENTATIVE LYNN questioned whether it would be more
appropriate to match Amendment 1 to that specific timeframe for
consistency.
MR. BANNOCK, recalling a question from a prior hearing, pointed
out that this entire bill section is not compliant with the
federal REAL ID Act of 2005, so any changes made to [paragraph
(8)] will not affect other parts of the statute, therefore, the
division has no preference regarding the specific timeframe.
REPRESENTATIVE LYNN suggested an amendment to Amendment 1, to
change "12 months" to "90 days".
REPRESENTATIVE COGHILL asked what the current grace period is if
one's driver's license is expired.
MR. BANNOCK responded that under current statute there is no
grace period, and one cannot drive with an expired license. If
a person comes into the DMV office a day or so after his/her
license expires, the division would continue the renewal process
without penalty, though by regulation, if more than 12 months
has lapsed since the license expired, the person must retake the
written exam. After 5 years have lapsed, he/she would need to
retake the skills test, commonly referred to as the "road test."
He noted that the DMV does not impose any fines for an expired
driver's license.
1:24:46 PM
REPRESENTATIVE COGHILL agreed that 90 days seems consistent and
mentioned driver's licenses are also used for identification
purposes.
REPRESENTATIVE DAHLSTROM questioned whether extending the grace
period any length of time would cause problems within the
division, for example, for the purpose of address changes, or
other administrative and police functions.
MR. BANNOCK responded that placing the change in statute would
establish a grace period. He stated that other than an
exception for military or college exemption, he was not aware of
any other grace period allowed. But he said that the question
of grace periods also raises the issue of whether a person with
a lapsed license is considered to hold a valid license, or if
his/her driving privilege is in limbo; regardless, the change to
grace period would still only apply to the driver's license
function.
REPRESENTATIVE COGHILL said he thought that Amendment 1 applied
to renewal of a license, or issuance of a duplicate license. He
added that Amendment 1 would not affect the issuance of initial
driver's licenses.
CHAIR RAMRAS [although no formal motion was made] said he
accepted the amendment to Amendment 1. He explained that the
effect of the amendment to Amendment 1 is that the text being
inserted would read "been expired for more than 90 days".
REPRESENTATIVE LYNN concurred.
CHAIR RAMRAS [treating Amendment 1 as having been amended],
asked if the objection was maintained. After determining that
it was not, announced that Amendment 1 [as amended] was adopted.
1:28:20 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2,
labeled 25-LS0040\C.5, Luckhaupt, 4/30/07, which read:
Page 2, line 11:
Delete "the person's legal status and presence in
the United States"
Insert "(1) a valid, unexpired nonimmigrant visa
or nonimmigrant visa status for entry into the United
States, (2) a pending or approved application for
asylum in the United States, (3) entry into the United
States in refugee status, (4) a pending or approved
application for temporary protected status in the
United States, (5) approved deferred action status, or
(6) a pending application for adjustment of status to
legal permanent residence status or conditional
resident status"
Page 3, lines 30 - 31:
Delete "the person's legal status and presence in
the United States"
Insert "(i) a valid, unexpired nonimmigrant visa
or nonimmigrant visa status for entry into the United
States, (ii) a pending or approved application for
asylum in the United States, (iii) entry into the
United States in refugee status, (iv) a pending or
approved application for temporary protected status in
the United States, (v) approved deferred action
status, or (vi) a pending application for adjustment
of status to legal permanent residence status or
conditional resident status"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG explained that there are people who are
unable to obtain their green card timely due to bureaucratic
reasons. He stated that the language in Amendment 2 is based on
Virginia law [Virginia Acts of Assembly-Chapter [H2471]], which
would allow a person with a pending application to get a
driver's license.
1:29:43 PM
MR. BANNOCK stated that the division supports Amendment 2.
REPRESENTATIVE LYNN announced that he accepts Amendment 2.
REPRESENTATIVE DAHLSTROM removed her objection to Amendment 2.
CHAIR RAMRAS objected for the purpose of discussion.
REPRESENTATIVE SAMUELS asked for clarification and for an
example of a person who is in refugee status pending asylum.
MR. BANNOCK responded that the division has attempted to define
a person's legal status, but the state has not yet adopted a
legal presence law, although 40 other states have. For example,
the State of Virginia adopted a six-point plan for its legal
presence law. He said that his division staff could not find a
single circumstance or instance in which an immigrant's
application status did not fit within the six points of the
Virginia Act.
REPRESENTATIVE SAMUELS asked for clarification of the source of
the language in Amendment 2 and asked about asylum status.
MR. BANNOCK replied that the language in Amendment 2 was taken
verbatim from portions of the Immigration and Customs
Enforcement (ICE), provisions. While he said he could not speak
specifically to the asylum status, he said that the federal
government clearly offers protection to those in one of the six
statuses. He stated that the DMV has maintained inclusion of
all who are legally present in the U.S. Those legally present
in the U.S. will fit one of the six categories [listed in
Amendment 2].
1:32:48 PM
REPRESENTATIVE HOLMES agreed with the director that immigrants
fit within the six federal criteria in the Virginia law embodied
in Amendment 2, and pointed out that all these immigrants had a
legal right to be in the United States. She related a situation
in which a family member experienced a significant delay in
obtaining a green card, even though he/she had followed all the
rules required to apply for legal immigration status. However,
due to a significant ICE backlog, he/she could not obtain a
green card timely. During this limbo period he/she had not been
given any written documentation to prove legal status in the
United States. If contacted, the ICE, would verbally verify
that the person had a legal right to be in the country. In this
situation, the person's legal status was considered, "pending
adjustment of status."
REPRESENTATIVE SAMUELS inquired as to how long a driver's
license would be valid under the proposed amendment if that
party had made an application for asylum in the United States.
MR. BANNOCK replied that all drivers' licenses are valid for
five years, until the person's next birthday in five years,
regardless of whether the party was rejected by the immigration
office.
REPRESENTATIVE GRUENBERG suggested a conceptual amendment to
Amendment 2, to read, "to expire on the next birthday in five
years unless rejected, and if rejected the driver's license
would expire immediately".
REPRESENTATIVE SAMUELS expressed concern that a person could
potentially physically possess a valid driver's license, even if
the driver's license was expired, or the person's immigration
application had been denied, because the expiration date would
actually reflect future date. He asked if it would be possible
to set the initial expiration date for a shorter timeframe to
allow for immigration processing time.
MR. BANNOCK replied that the federal government posts and
updates an estimated wait period on its website, which sometimes
exceeds two years. He explained that the federal agency's
backlog sometimes creates a problem for the division, and using
the Virginia language embodied in Amendment 2 will help address
and mitigate these issues.
1:36:29 PM
REPRESENTATIVE COGHILL asked whether the driver's license would
be valid only during the time the person has authorized legal
status. He also asked whether Amendment 2 would place tension
in its directive to the agency because the person's
authorization status was listed as indefinite.
REPRESENTATIVE GRUENBERG referred members to the Virginia Act
included in the committee packet. He stated that although the
language in the Virginia Act is mirrored in Amendment 2, other
portions of the Virginia Act could potentially address this
issue. He indicated that he would support amending Amendment 2
to reflect the rest of the Virginia language.
MR. BANNOCK explained that another portions of HB 3 pertains to
immigrants' indefinite statuses. He opined that if Amendment 2
were adopted, even when a person's pending status is continued
into perpetuity he/she would still only be issued a driver's
license for a one-year period. After one year, he/she would
have to renewal annually during the application pending status.
REPRESENTATIVE GRUENBERG said that he could also support the
entire Virginia language as alternative language.
REPRESENTATIVE COGHILL asked whether the division could renew a
license that was in pending status if the person provided
documentation that showed the application was still pending.
MR. BANNOCK replied yes. The division would require a one year
renewal on applications without an end date. However, if the
individual's documentation allowed him/her legal status in the
United States for 18 months, the division would issue the
license up until the 18-month date. He noted that these
licensing circumstances are addressed in HB 3.
REPRESENTATIVE COGHILL questioned whether the limitation for
license issuance and renewals ought to be clarified further to
identify the applicant's status, such as identifying "pending
legal status" or "indefinite status."
MR. BANNOCK responded that it would not be necessary to do and
referred to the limiter in Section 6.
MR. BANNOCK, in response to Representative Coghill, confirmed
that a pending application would be treated as an indefinite
application status.
1:40:42 PM
REPRESENTATIVE GRUENBERG asked whether the division preferred
the language in Section 6 or the additional language from the
Virginia Act.
MR. BANNOCK explained that the difference between Section 6 in
HB 3 and the Virginia Act is that the Virginia Act is very
specific to items listed in paragraphs (1) through (6), whereas
Section 6 pertains to the whole gambit. He said he understood
that very few people actually hold permanent residency cards,
but that those in permanent residency status must still renew
their card every 10 years. He said that he thought the result
would be the same, whether the Virginia Act is altered to make
it specific to the six paragraphs listed in Amendment 2, or
whether Section 6 is maintained.
CHAIR RAMRAS stated he was satisfied with the language in
Section 6. He asked whether Amendment 2 dealt with the issues
adequately within Section 6 or if additional language should be
added to further clarify how renewals on pending applications
are handled.
MR. BANNOCK responded that he thought the instructions to the
division are crystal clear.
REPRESENTATIVE SAMUELS described an instance where the ICE
indicated there would be an a delay in processing an application
for about two-and-a-half years. And whether the DMV would
consider applicant in the aforementioned pending status an
indefinite status.
MR. BANNOCK responded yes.
REPRESENTATIVE SAMUELS related his understanding that the bill's
goal, is to stop potential terrorists from obtaining a driver's
license. He expressed concern that the DMV might issue an
identification card ]from one to five years] to a person whose
intention is to harm our country. However, he said he would not
offer any amendments to Amendment 1 if the DMV is satisfied with
issuing one-year licenses for those persons holding indefinite
status.
REPRESENTATIVE GRUENBERG stated he was satisfied with Amendment
2.
CHAIR RAMRAS removed his objection to Amendment 2. There being
no further objection, Amendment 2 was adopted.
1:44:59 PM
REPRESENTATIVE DAHLSTROM moved to report HB 3, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes. There being no objections, the CSHB
3(JUD) was reported from the House Judiciary Standing Committee.
HB 151 - INDEMNITY CLAUSE IN PUBLIC CONTRACTS
1:45:57 PM
CHAIR RAMRAS announced that the next order of business would be
HOUSE BILL NO. 151,"An Act requiring an indemnification and hold
harmless provision in professional services contracts of state
agencies, quasi-public agencies, municipalities, and political
subdivisions." [Before the committee was a proposed committee
substitute (CS) for HB 151, Version 25-LS0479\L, Bannister,
3/28/07, which had been previously adopted by the House
Judiciary Standing Committee on 4/2/07].
1:46:57 PM
LEANNE BOLDENOW, Vice-President, Marsh USA Inc., explained that
March USA Inc. is an insurance brokerage that works with about
30 design firms statewide. She related that she previously
wrote a letter of support for HB 151 because she often has
reviewed poorly written, uninsurable contracts released by
public agencies that contain onerous indemnification clauses.
Those contracts often require the design consultant to take on
liabilities that are not typically his/her responsibility. She
said that insurance generally covers liability in tort law and
that a firm would be held responsible even if a written contract
is not in place. She said she also supports HB 151 because it
is in alignment with professional liability insurance for the
design professionals.
1:48:26 PM
JAMES CANTOR, Chief Assistant Attorney General - Statewide
Section Supervisor, Transportation Section, Civil Division
(Anchorage), Department of Law (DOL), stated that he agreed with
the last speaker. He opined that HB 151 pertains to
insurability and the negligent acts that cause liability and
third party claims not contract claims between the contractor
and the agency or claims between the subcontractor and the
contractor. He said that HB 151 applies to a person who is
injured and who sues the person that built, designed, or owns
the project, which amounts basically to tort claims. Insurance
is already available to cover the risk between consultants and
the public agency, but that co-insurance is not available. This
legislation addresses how risk should be handled when insurance
is not available. He said that the Department of Law supports
CSHB 151, Version L, as written.
REPRESENTATIVE HOLMES asked whether the standardized language
contained within HB 151 was in the state's best interest or at
the least would not adversely impact the state.
MR. CANTOR responded that HB 151 is similar to language the
Department of Transportation & Public Facilities (DOT&PF)
already uses. The bill is aimed at the few agencies that do not
currently use the DOT&PF provisions.
[Chair Ramras passed the gavel to Vice Chair Dahlstrom.]
1:50:38 PM
BOYD MORGENTHALER, P.E., Client Contract Task Force, Alaska
Professional Design Council (APDC), explained that the APDC is a
consortium of professional societies that represents about 5,000
architects, engineers, and land surveyors registered in Alaska.
He related that APDC and himself, as a mechanical engineer,
strongly support HB 151. He said that the bill levels out the
playing field for insurance and liability questions in tort and
would help the design professionals more smoothly negotiate
contracts. There is a wide range of how terms are written and
that this proposed standardization would help the design
professionals.
VICE-CHAIR DAHLSTROM, upon determining no one else wished to
testify, closed public testimony on HB 151.
1:52:49 PM
TREVOR FULTON, Staff to Representative Craig Johnson, Alaska
State Legislature, said that he wanted to be certain that the
members' prior concerns have been addressed. He stressed that
HB 151 pertains only to construction related contracts, which
are addressed in the CSHB 151(STA), and are also included in the
Version L. He noted that the bill does not address issues that
arise between builders and public contracting agencies. The
Associated General Contractors (AGC) and the Associated Builders
and Contractors, Inc., Alaska Chapter (ABC) support the bill, he
related. The DOT&PF language does not extend to builders and he
opined that doing so would expand the scope of the bill
considerably. He explained that subcontractors are covered
under the terms of a separate contract between them and the
agency, or the company with whom they are contracting.
1:55:44 PM
REPRESENTATIVE GRUENBERG moved to report the proposed committee
substitute (CS) for HB 151, Version 25-LS0479\L, Bannister,
3/28/07, out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, CSHB
151(JUD) was reported from the House Judiciary Standing
Committee.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
HB 225 - POSSESSION OF WEAPON WHILE ON BAIL
1:56:26 PM
CHAIR RAMRAS announced that the next order of business would be
HOUSE BILL NO. 225,"An Act relating to misconduct involving
weapons and bail."
The committee took an at-ease from 1:56 p.m. to 1:59 p.m.
CHAIR RAMRAS advised that the public testimony was previously
closed on HB 225.
2:00:32 PM
JEANNE OSTNES, Staff to Representative Craig Johnson, Alaska
State Legislature, indicated that the CSHB 225, Version 25-
LS0710\M, Luckhaupt, 4/11/07, had previously been adopted by the
House Judiciary Standing Committee.
REPRESENTATIVE COGHILL made a motion to adopt Amendment 1,
labeled 25-LS0710\M.2, Luckhaupt, 4/23/07, which read:
Page 3, lines 15 - 20:
Delete all material and insert:
"(A) while the person is on release under
AS 12.30.020 - 12.30.040 for a felony under AS 11; or
(B) in violation of AS 11.61.220(a)(6) and
the person is on release under AS 47.12.080 for a
delinquent act that would be a felony under AS 11 if
committed by an adult."
Page 3, following line 20:
Insert a new bill section to read:
"* Sec. 3. AS 11.61.210(a) is amended to read:
(a) A person commits the crime of misconduct
involving weapons in the fourth degree if the person
(1) possesses on the person, or in the
interior of a vehicle in which the person is present,
a firearm when the person's physical or mental
condition is impaired as a result of the introduction
of an intoxicating liquor or a controlled substance
into the person's body in circumstances other than
described in AS 11.61.200(a)(7);
(2) discharges a firearm from, on, or
across a highway;
(3) discharges a firearm with reckless
disregard for a risk of damage to property or a risk
of physical injury to a person under circumstances
other than those described in AS 11.61.195(a)(3)(A);
(4) manufactures, possesses, transports,
sells, or transfers metal knuckles;
(5) manufactures, sells, or transfers a
switchblade or a gravity knife;
(6) knowingly sells a firearm or a
defensive weapon to a person under 18 years of age;
(7) other than a preschool, elementary,
junior high, or secondary school student, knowingly
possesses a deadly weapon or a defensive weapon,
without the permission of the chief administrative
officer of the school or district or the designee of
the chief administrative officer, within the buildings
of, on the grounds of, or on the school parking lot of
a public or private preschool, elementary, junior
high, or secondary school, on a school bus while being
transported to or from school or a school-sponsored
event, or while participating in a school-sponsored
event, except that a person 21 years of age or older
may possess
(A) a deadly weapon, other than a loaded
firearm, in the trunk of a motor vehicle or encased in
a closed container in a motor vehicle;
(B) a defensive weapon;
(C) an unloaded firearm if the person is
traversing school premises in a rural area for the
purpose of entering public or private land that is
open to hunting and the school board with jurisdiction
over the school premises has elected to have this
exemption apply to the school premises; in this
subparagraph, "rural" means a community with a
population of 5,500 or less that is not connected by
road or rail to Anchorage or Fairbanks or with a
population of 1,500 or less that is connected by road
or rail to Anchorage or Fairbanks; [OR]
(8) being a preschool, elementary, junior
high, or secondary school student, knowingly possesses
a deadly weapon or a defensive weapon, within the
buildings of, on the grounds of, or on the school
parking lot of a public or private preschool,
elementary, junior high, or secondary school, on a
school bus while being transported to or from school
or a school-sponsored event, or while participating in
a school-sponsored event, except that a student may
possess a deadly weapon, other than a firearm as
defined under 18 U.S.C. 921, or a defensive weapon if
the student has obtained the prior permission of the
chief administrative officer of the school or district
or the designee of the chief administrative officer
for the possession; or
(9) knowingly possesses a firearm that is
concealed on the person
(A) while the person is on release under
AS 12.30.020 - 12.30.040 for a
(i) misdemeanor crime against a person
under AS 11.41;
(ii) misdemeanor crime involving domestic
violence; or
(iii) crime under a municipal ordinance
similar to a crime described in (i) or (ii) of this
subparagraph; or
(B) in violation of AS 11.61.220(a)(6) and
the person is on release under AS 47.12.080 for a
delinquent act that would be a crime listed in (A)(i)
- (iii) of this paragraph if committed by an adult."
Renumber the following bill sections accordingly.
Page 3, line 28:
Delete "sec. 3"
Insert "sec. 4"
Page 3, line 30:
Delete "applies"
Insert "and AS 11.61.210(a)(9), added by sec. 3
of this Act, apply"
REPRESENTATIVE DAHLSTROM objected.
MS. OSTNES explained that Amendment 1 separates out the second
concealed weapon offense by aligning the to the level of the
initial crime. She explained that if the initial crime was a
misdemeanor, and he/she violated bail conditions in a subsequent
crime [using a concealed weapon], he/she would be charged with a
second misdemeanor. However, if the initial crime was a felony
crime, and he/she violated bail conditions in a subsequent crime
[using a concealed weapon], he/she would be charged with a
second felony crime.
2:01:55 PM
CHAIR RAMRAS asked for clarification whether Amendment 1 was
consistent with Amendment 2.
REPRESENTATIVE COGHILL responded that one amendment pertains to
the charge and the other amendment pertains to the condition of
probation. He expressed a concern that someone who has been
convicted of a misdemeanor, and who is subsequently found in
possession of a concealed weapon could be charged with a felony.
Amendment 1 sets the charges for a concealed weapon offense
equal to the level of the initial charge.
MS. OSTNES, referring to Amendment 1, explained that for the
change proposed to page 3, lines 15-20, of Version M,
subparagraph (B) refers to a juvenile on release under AS
47.12.080 and also separates out misdemeanors from felonies.
REPRESENTATIVE DAHLSTROM inquired as to whether a person who
charged is subsequently found innocent, would face additional
proceedings for a concealed weapon charge.
MS. OSTNES specified that when someone is charged with a crime
the judge, as a provision of bail release, advises the party not
to carry a concealed weapon. If the person subsequently is
found carrying a concealed weapon, he/she would incur a second
charge for violation of the judge's order.
REPRESENTATIVE DAHLSTROM said that although she agrees with the
intent of the bill and the amendment, both appear to be aimed at
persons carrying concealed weapons. She pointed out that the
sponsor statement refers to gang-related crimes, yet the bill
doesn't seem to be restricted to gang-related instances. She
inquired as to the constitutionality of the bill.
MS. OSTNES explained that the bill drafter did not find a
constitutional problem because the judge would order the person
not to carry a concealed weapon, as a condition of bail release.
REPRESENTATIVE DAHLSTROM again expressed concern about the
constitutional rights of a person who has not yet been convicted
of a crime.
REPRESENTATIVE COGHILL offered his understanding that conditions
of bail do curtail some personal rights. He said that the bail
limitations are set to correlate to the magnitude of the crime.
2:08:25 PM
MS. OSTNES, in response to Representative Lynn, indicated that
HB 225 applies only to concealed weapon use.
REPRESENTATIVE LYNN asked whether the bill should be expanded to
cover non-concealed weapon use for felony crimes. He posed an
instance involving a domestic violence dispute in which someone
did not carry a concealed weapon but could brandish a weapon
out in the open.
MS. OSTNES opined that in crimes involving a domestic violence,
a person [the victim] would be able to react to a situation in
which he/she could visibly see a gun, as opposed to when a gun
was concealed. She opined that she did not think some
organizations, such as the National Rifle Association (NRA), or
others would support a blanket restriction, unless the judge
ordered and imposed, as a condition of bail, that the individual
could not carry any firearm at all.
REPRESENTATIVE DAHLSTROM asked if the crime was serious wouldn't
the person already be incarcerated and not be released on bail.
MS. OSTNES pointed out that all domestic violence charges are
misdemeanors and that a person could have numerous misdemeanors
on his/her record [and could still be released on bail].
REPRESENTATIVE DAHLSTROM maintained her objection.
2:10:07 PM
A roll call vote was taken. Representatives Coghill, Samuels,
Lynn, Holmes, Gruenberg, and Ramras voted in favor of Amendment
1. Representative Dahlstrom voted against it. Therefore,
Amendment 1 was adopted by a vote of 6-1.
REPRESENTATIVE COGHILL made a motion to adopt Amendment 2,
labeled 25-LS0710\M.3, Luckhaupt, 4/26/07, which read:
Page 3, lines 21 - 25:
Delete all material and insert:
"Sec. 12.30.018. Possession of concealed firearms
while on release. A court may prohibit a person from
possessing a concealed firearm while on release under
AS 12.30.020 - 12.30.040 for a felony crime against a
person under AS 11.41."
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE COGHILL explained that Amendment 2 outlines the
conditions of bail and defines the authorizing language for the
judge's sentencing guidelines. She noted that AS 12.30 covers
misdemeanor offenses, while AS 11.41 covers felony offenses.
The committee took an at-ease from 2:11 p.m. to 2:26 p.m.
2:26:52 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
expressed concern that Amendment 2 gives the court the
discretion to prohibit firearms for certain crimes. Currently,
the court has the discretion to impose that condition on any
crime and by adding this language, a court might interpret the
language to mean that these are the only crimes for which it can
impose the limitations. She said that there are many crimes for
which a court would want to prohibit a person from carrying a
firearm, let alone a concealed weapon, as a condition of bail.
REPRESENTATIVE COGHILL clarified that he thought current law
applies to both misdemeanors and felonies.
MS. CARPENETI concurred.
REPRESENTATIVE COGHILL questioned whether dividing the charges
in Amendment 1 altered the situation between misdemeanors and
felonies.
MS. CARPENETI said that she did not necessarily think they were
connected.
REPRESENTATIVE COGHILL questioned whether that permissive
language was clear in statute elsewhere.
MS. CARPENETI related that indicated she would have to research
the issue of bail law further but that sections of bail law
address firearms specifically, especially with respect to
domestic violence offenses.
2:29:56 PM
REPRESENTATIVE HOLMES asked whether Amendment 2 replaces Section
3 of the bill, and whether Ms. Carpeneti shared the same concern
about Section 3 as she had expressed with Amendment 2.
MS. CARPENETI responded that although she was less concerned
about Section 3, she maintained a little concern because one
could argue that while it is mandatory for these crimes, the
imposition is still discretionary. She stated that all bail
provisions have a catch-all phrase that allows the court to
order a condition of bail necessary to protect the public.
REPRESENTATIVE HOLMES questioned whether Ms. Carpeneti
recommended that the committee not adopt Amendment 2, and delete
Section 3, or if merely rely on the underlying bail statutes to
address the issues.
MS. CARPENETI said that she recommended the committee not adopt
Amendment 2. She opined that Section 3 is acceptable so long as
the record is clear that the legislature does not intend to
limit the court's discretion to impose a condition of bail in
relation to any other charges.
2:31:27 PM
GERALD LUCKHAUPT, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency (LAA), acknowledged that there could be an issue raised
for Amendment 2 vis-Ã -vis the authority that a court would have
to restrict someone to possess a handgun. He opined that
Section 3 does not pose a problem since there is nothing in that
section that would conflict with the court's ability to restrict
a handgun as a condition of bail.
REPRESENTATIVE COGHILL suggested deleting Section 3 from the
bill because he said he thought it imposes a directive in all
circumstances. He expressed concern that Section 3 would
infringe on the right to bear arms, and therefore he suggested
that the condition should be more permissive
2:33:23 PM
REPRESENTATIVE COGHILL maintained his motion to adopt Amendment
2, but cautioned that the directive sets up a special
circumstance that under all bail releases the judge must direct
that the individual cannot keep a concealed firearm.
REPRESENTATIVE HOLMES surmised that the intent of Amendment 2 is
to give the judge more latitude. She questioned whether the
language of Amendment 2 was already covered under the current
bail statutes.
REPRESENTATIVE COGHILL related his understanding that Ms.
Carpeneti is saying that the discretion to impose restrictions
for concealed and non-concealed weapons is covered under
existing bail statutes. If that is so, he suggested the
committee strike Section 3 and leave it to the court to decide.
REPRESENTATIVE GRUENBERG opined that the statute is quite clear
that the court can impose any restriction necessary to assure
the public's safety. He referred to AS 12.30.020 (b)(7) as
follows: "if a judicial officer determines under (a) of this
section that the release of the person will not reasonably
assure the appearance of the person or will pose a danger to the
alleged victim, other persons, or the community, the judicial
officer may impose any other condition considered reasonably
necessary to assure the defendant's appearance as required and
the safety of the alleged victim, other persons, or the
community." He related his belief that the aforementioned
language specifically allows a judge to impose reasonable
conditions for bail in any case.
A roll call vote was taken. Representative Lynn voted in favor
of Amendment 2. Representatives Samuels, Holmes, Gruenberg,
Dahlstrom, Coghill, and Ramras voted against it. Therefore,
Amendment 2 failed by a vote of 1-6.
2:36:17 PM
REPRESENTATIVE COGHILL moved Conceptual Amendment 3 to strike
Section 3 from HB 225.
REPRESENTATIVE HOLMES objected for purposes of discussion.
REPRESENTATIVE COGHILL said that the courts have discretion
under current law to set conditions of bail.
MS. CARPENETI, in response to Representative Holmes, confirmed
that under current law the courts have the discretion to set
conditions for bail.
REPRESENTATIVE HOLMES removed her objection.
CHAIR RAMRAS asked if there were any further objections and
there were none. Conceptual Amendment 3 was adopted. He asked
Ms. Carpeneti if she had any concerns with the language in
Amendment 1, which the committee previously passed.
MS. CARPENETI said that although she had some concern with
Amendment 1, it might only require technical fine tuning. Under
current statute, AS 11.56.757 (a), it is a Class A misdemeanor
to violate any condition of release, except for a failure to
appear, which is already a crime. She related her understanding
that the sponsor did not intend to change that condition, but
that the sponsor would like to make it more serious if the
person were released under certain circumstances, for example,
if he/she carried a concealed weapon after the court had ordered
the person not to do so.
2:38:41 PM
MS. CARPENETI suggested a conceptual amendment could be made,
and referred to page 1 line 13, (B), Version M, because the
committee eliminated that section with the adoption of
Conceptual Amendment 3. She reiterated her understanding that
the sponsor and the committee wanted to make carrying a
concealed weapon after an individual has been ordered by the
court not to do so a more serious crime.. She suggested that
she would work with the bill drafter to ensure that that
condition was met.
CHAIR RAMRAS asked to set HB 225 aside to bring back to the
committee for further review.
REPRESENTATIVE HOLMES referred Ms. Carpeneti and Mr. Luckhaupt
to AS 12 30.018 in Section 4. The aforementioned statute was
added by Section 3.
CHAIR RAMRAS set aside HB 225, Version M, as amended.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:43 p.m.