SENATE JUDICIARY COMMITTEE March 18, 1998 1:35 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Sean Parnell Senator Johnny Ellis MEMBERS ABSENT Senator Drue Pearce, Vice-Chairman Senator Mike Miller COMMITTEE CALENDAR SENATE BILL NO. 313 "An Act relating to sponsor certification of initiative petitions; relating to sponsor identification during petition circulation; relating to the voidability of an initiated law; placing limitations on the compensation that may be paid to sponsors of initiative petitions; prohibiting payments to persons who sign or refrain from signing initiative petitions; and repealing procedures for filing a supplementary initiative petition." - MOVED SB 313 OUT OF COMMITTEE SENATE BILL NO. 309 "An Act relating to the use of force by peace officers and correctional officers." - SB 309 MOVED OUT OF COMMITTEE SENATE JOINT RESOLUTION NO. 36 Proposing amendments to the Constitution of the State of Alaska relating to redistricting of the legislature, and repealing as obsolete language in the article setting out the apportionment schedule used to elect the members of the first state legislature. - HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION SB 313 - No previous action to record. SB 309 - See State Affairs minutes dated 2/26/98 and 3/3/98. SJR 36 - See Judiciary minutes dated 3/11/98. WITNESS REGISTER Senator Jerry Ward State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Sponsor of SB 309 Mr. Craig Johnson Staff to Senator Jerry Ward State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Commented on SB 309 Senator Bert Sharp State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Sponsor of SB 313 Mr. Ralph Bennett Staff to Senator Robin Taylor State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Commented on SJR 36 Mr. Jim Baldwin Department of Law PO Box 110300 Juneau, Ak 99811-0300 POSITION STATEMENT: Commented on SJR 36 ACTION NARRATIVE TAPE 98-18, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:40 and called up SB 309 as the first order of business. SB 309 - USE OF NONLETHAL AND DEFENSIVE WEAPONS SENATOR JERRY WARD came forward to present his bill and said the legislation was inspired by his son-in-law, who serves on the Anchorage SWAT team and uses a type of non-lethal bean bag projectile, which is a useful tool in certain situations. SENATOR WARD allowed that there is an element of danger in using these projectiles and cited a case where a suicidal woman had her arm broken accidentally by one of these projectiles. SENATOR WARD said the bill takes away the fear of prosecution in cases where specially trained and certified officers use this type of force in an appropriate situation. He said those people who use this mechanism to protect the public should be protected themselves. SENATOR WARD said that in our litigious time, this kind of protection is necessary to allow properly trained officers to use this weapon without fear of reprisal. He again mentioned that the bill was brought to his attention by his son-in-law, and noted the zero fiscal note that accompanies the bill. SENATOR PARNELL asked if a recently enacted bill that provided a broad scope of immunity for police officers covered this issue. SENATOR WARD replied that this issue was overlooked in that bill. He mentioned a case in the Lower 48 where the use of non-lethal weapons caused an accidental death. SENATOR PARNELL asked where immunity for peace officers is in existing law and SENATOR WARD responded he was not sure. SENATOR PARNELL asked if the proper use of non-lethal weapons, employed in the scope of an officer's duty, was covered under this immunity. SENATOR WARD replied that these weapons are currently considered the equivalent of a shotgun, and this bill just allows the use of these types of non-lethal weapons, instead of a shotgun. Number 108 MR. CRAIG JOHNSON, staff to SENATOR WARD, interjected that currently, any projectile fired from a weapon capable of lethal force is considered lethal force. He clarified that now these non- lethal projectiles are treated the same as traditional projectiles and this bill would put them in a separate class. SENATOR PARNELL asked if the current statute immunized use of lethal force and MR. JOHNSON said it does not. SENATOR WARD said this does not reduce any personal liability for negligent acts, only classifies non-lethal projectiles differently. SENATOR PARNELL voiced no problem with the concept, but only wanted to be sure they weren't repeating something that has already been done. SENATOR ELLIS asked about the phrase "unlikely accidents" in the sponsor's statement and asked for clarification. SENATOR WARD replied he was referring to a case like that previously discussed which resulted in a broken bone. SENATOR ELLIS asked if the bill seeks to grant criminal and civil immunity for officers and SENATOR WARD replied that no one can totally escape civil liability but the bill seeks to hold officers harmless in cases where they have used this force appropriately. SENATOR ELLIS asked if the woman in the example has filed suit against anyone and SENATOR WARD replied no, she is in Anchorage Psychiatric Institute, where she is getting help. SENATOR ELLIS attempted to clarify SENATOR WARD's intention with the bill; asking if he is attempting to prevent charges being brought against an officer for criminal wrongdoing, or if he is attempting to prevent a civil suit by a person like the woman with the broken bone. SENATOR WARD replied he thinks he is trying to accomplish both objectives, and restated that these non-lethal projectiles are a useful tool in some situations and he would not want officers to hesitate to employ them. SENATOR ELLIS asked if staff could point out which part of the bill applied to criminal liability and which part related to civil liability. MR. JOHNSON replied that, essentially, the bill only reclassifies the bean bag bullet itself as non-lethal. He explained in the example that was used, lethal force was not an option but, technically, that's what was used as there is no separate classification for these non- lethal rounds. He said he does not believe the bill would prevent civil or criminal penalties. SENATOR WARD interjected that it is a classification of the type of bullet, something that was unfamiliar to him until recently. He said it is a tool that can save lies. SENATOR ELLIS clarified that the bill allows a reclassification of a type of ammunition, commenting he had been confused by the reference to a litigious society. SENATOR WARD said he had just taken the example one step further and SENATOR ELLIS questoned if, in the example, the woman would still have the right to sue and SENATOR WARD replied she would. SENATOR PARNELL remarked that SENATOR ELLIS has raised some good points and that the classification of the rounds as non-lethal would have civil implications and would help in the defense of an officer who used this force. He stated the bill would not immunize from liability, but would aid a defense in a civil action. Number 253 SENATOR ELLIS commented that the definition of non-lethal refers to things commonly used now, but does not cover the techniques that may soon be developed in this rapidly changing high-tech field. He suggested that a more expansive definition may help to keep the bill from rapidly becoming out of date. SENATOR WARD agreed, and said they had used current techniques for the definition. SENATOR ELLIS inquired if SENATOR WARD was familiar with the level at which an order to shoot might be given, asking who has the ultimate responsibility. SENATOR WARD replied that it was whoever pulls the trigger, saying an illegal order shall not be followed. SENATOR WARD continued that there was a chain of command and an officer in charge of a team might give that type of order, but would also have the authority to do it themselves. CHAIRMAN TAYLOR interjected that, from a tort perspective, the officer who authorized the shot (provided it was done appropriately, following established procedures) would be included in the scope of the liability, along with the entire police department and city, etc. CHAIRMAN TAYLOR concluded that under the doctrine of respondeat superior, if the officer was acting within the scope of his or her duties, they would be personally indemnified and the city or the governing authority would be liable for any judgement. However, if the officer was ordered not to shoot, and did so anyway, he or she would be personally responsible and the governing authority would likely be absolved from any judgement. SENATOR WARD said the officers who approached him are under the impression that they are personally responsible in these situations, regardless of their orders. SENATOR PARNELL asked if there was further public testimony on the bill. CHAIRMAN TAYLOR, seeing none, accepted a motion from SENATOR PARNELL to move the bill from committee with individual recommendations, and without objection, it was so ordered. SB 313 - PETITION CIRCULATION SENATOR BERT SHARP came forward to present SB 313, his bill relating to petition circulation. SENATOR SHARP stated that it is often assumed that people canvassing for signatures on an initiative petition are volunteers. SENATOR SHARP said this is often true, but it is more likely that these people are signature "bounty hunters," paid by the sponsor of the initiative. SENATOR SHARP noted that all other states have laws against this and said his bill, in an effort to bring the initiative process back to a more grassroots level, requires petition circulators to display identification (their name and voter registration number) during signature solicitation. SB 313 also prohibits payment per signature by the sponsor. Payment for canvassers would still be allowed by any other method. SENATOR SHARP said the bill further prohibits payment for a signature on a petition, which is not currently illegal and eliminates the 30-day extension period currently allowed. SENATOR SHARP summed it up by saying, "you either got 'em or you don't." Number 400 SENATOR ELLIS asked about an Anchorage Daily News article that encouraged the Legislature to increase initiative campaign reporting requirements, which currently do not require disclosure of funds unless they are rolled forward into an effort to actually pass the initiative once it appears on the ballot. He asked SENATOR SHARP if he had given any thought to including that in this bill and SENATOR SHARP replied he had not. SENATOR SHARP said he was reticent to force additional reporting on anyone, but did not wish to say he would not embrace it. He commented that funding sources can be oblique. SENATOR ELLIS asked for more detailed comments on the elimination of the 30 day extension period and its possible implications on the right of people to petition in a democratic government. SENATOR SHARP replied that, with more and more initiatives, the Legislature is given less and less time to react with legislation to the initiatives. SENATOR SHARP said the time frame for collecting the necessary signatures is quite liberal and any extension of that time focuses on the time limit itself, and not on the merits of the initiative. SENATOR ELLIS asked if this concern couldn't be better addressed by some sort of deadline that required the petition process to end by a certain date. SENATOR SHARP responded by saying this would be difficult for the Division of Elections and restated his point that the time for gathering the necessary signatures for a successful petition is ample, and the extension merely begs for a last minute infusion of money into a campaign. He said there must be a cut off at which point it is determined if "you got 'em or you don't." SENATOR ELLIS asked what the public policy reason for this concern was and SENATOR SHARP replied that there is plenty of time to get the signatures, if the effort or the interest of the people is lacking, so be it. He thinks it goes against public policy in the initiative process to allow the refocusing of monetary resources after the initial effort. SENATOR ELLIS remarked that the reason why people fall short of the required number of signatures is that people misrepresent themselves as registered voters and are later disqualified by the Division of Elections. SENATOR ELLIS said he has no sympathy for the signature bounty hunters, but commented that signature gatherers have no good way to verify if a person is indeed a registered voter. He said the extension has always been a failsafe method to ensure that all the time and effort was not wasted due to disqualification of those people who misrepresented themselves. SENATOR PARNELL noted that another section of the bill is related to this. He pointed out that on page 2 a new section is being added that places more of the burden on the petition sponsors to ensure those signatures they turn in come from legitimate, registered voters. SENATOR PARNELL said this verification can be done through public and private databases, thus reducing the burden on the Division of Elections. SENATOR ELLIS asked if this wouldn't just encourage canvassers to come into the Division of Elections and check signatures every week or so. He asked if they would have the right to do this, suggesting that not everyone has computers and database access. SENATOR PARNELL said this would still result in much less work for the Division of Elections at the end of the process. SENATOR ELLIS asked, since the intent of the bill was to identify the group collecting signatures, if the bill includes anything prohibiting "petition groups." SENATOR SHARP replied that there was no restriction being proposed that requires any additional identification other than what is currently required by the Division of Elections. SENATOR ELLIS replied he thought the bill increased reporting requirements. SENATOR SHARP said only on the person actually collecting the signatures. He also said, even though under current law signature gatherers must be registered voters, he has had calls complaining about canvassers who refuse to identify themselves when asked. SENATOR ELLIS clarified that the name tag would contain the canvasser's name and voter number, not the organization they represent. SENATOR SHARP agreed. SENATOR ELLIS asked if it is currently illegal to use canvassers shipped into the state and SENATOR SHARP said canvassers must be registered voters, requiring a 30 day residency. CHAIRMAN TAYLOR asked if there was further testimony on the bill, there was none. SENATOR PARNELL moved SB 313 out of committee with individual recommendations. Without objection, it was so ordered. SJR 36 - REAPPORTIONMENT BOARD & REDISTRICTING CHAIRMAN TAYLOR indicated to the committee that they had a copy of a new committee substitute on their desks that brought the draft into line with the version in the House finance committee. It establishes a five-member redistricting board appointed by the Chief Justice of the Supreme Court, with one member from each judicial district. He said due to the controversy surrounding redistricting, a "Christ-like" figure has to be found to appease people. He said it is always difficult to find these people. He noted that the work draft was marked "GLOVER/B" version. SENATOR PARNELL moved the adoption of the GLOVER/B version, dated 3/12/98, as the working vehicle for the committee. Without objection, it was so ordered. MR. JIM BALDWIN, representing the Department of Law, came forward and noted that he had previously testified on the bill, but spoke to a different version and would like to make a few additional comments. CHAIRMAN TAYLOR indicated he should do so. MR. BALDWIN said the bill is similar to HJR 44, with the exception of one provision that he believes was excluded due to his testimony in the House. MR. BALDWIN pointed out a few problematic provisions still existing in the bill. Page three, lines 2-3 state, "the Chief Justice shall appoint a redistricting board, subject to the provisions of this section and as may be provided by law"; MR. BALDWIN said this would impose additional criteria for the appointment of redistricting board members. He mentioned that the House attempted to come up with an unassailable process which did not involve the Governor. He commented this provision might allow partisan politics to creep back into the process, if criteria specified included political parties or other similar considerations. MR. BALDWIN remarked that the Attorney General has traditionally provided legal counsel for the reapportionment board, and he assumes if the board was moved to another branch that the court system would provide for that. He mentioned the department has provided a fiscal note to the House version of the bill and they feel it may be an involved process to preclear the change. They anticipate that some interest may come forward to challenge preclearance, so the fiscal note takes into account the possibility of consulting experts to help assemble the preclearance application. He indicated the fiscal note on the House side was approximately $60,000. MR. BALDWIN pointed out that a provision beginning on page three, dealing with the schedule of the board, would effectively reduce the time line by 60 days. Currently, the board has 90 days to formulate a plan and then transmit the plan to the Governor, the Governor then has 90 days to review the plan and present a final plan, and MR. BALDWIN indicated all of this time is necessary to accommodate public comment and make adjustments. MR. BALDWIN concluded by saying he had no further comments, other than those he had made during his previous testimony. CHAIRMAN TAYLOR asked who the fifth member would be since Alaska only has four judicial districts. MR. BALDWIN replied the fifth member would be decided by the four appointed members. CHAIRMAN TAYLOR asked if there was a challenge that could be made to this bill under the "one man, one vote" rule, since it apportions the board that will reapportion the state based on judicial districts and might diminish the influence of major population centers in comparison to rural areas. TAPE 98-18, SIDE B Number 001 MR. BALDWIN said he had not considered that, but believed that since the current practice in the Constitution is obsolete (relying on geography rather than population), apportionment is not required to adhere to the letter of the Constitution, only to attempt to obtain some geographic balance and distribution. He said this is an interesting issue, one he hadn't considered. MR. BALDWIN noted that the board itself has not been apportioned in the past and CHAIRMAN TAYLOR agreed he'd never seen it done either. MR. RALPH BENNETT said that if there was a provision missing from the bill he was not aware of it. MR. BALDWIN restated that he believes the provision was purposefully deleted. SENATOR PARNELL made a motion to move CSSJR 36 from committee with individual recommendations. SENATOR ELLIS objected and CHAIRMAN TAYLOR indicated the bill would be held in committee. With no further business to come before the committee, they were adjourned at 2:25 p.m.