Legislature(2015 - 2016)BELTZ 105 (TSBldg)

02/29/2016 01:30 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
+ Bills Previously Heard/Scheduled: TELECONFERENCED
-- Public Testimony --
Moved SJR 19 Out of Committee
Moved CSSB 24(JUD) Out of Committee
         SB 174-REG. OF FIREARMS/KNIVES BY UNIV. OF AK                                                                      
1:42:36 PM                                                                                                                    
CHAIR MCGUIRE  announced the consideration  of SB 174.  She noted                                                               
this  is the  first hearing  and public  testimony would  open on                                                               
Wednesday, March 2.                                                                                                             
1:43:27 PM                                                                                                                    
SENATOR  PETE KELLY,  Alaska State  Legislature, Juneau,  Alaska,                                                               
sponsor of SB  174, stated that SB 174 allows  concealed carry of                                                               
handguns on the University of  Alaska campuses. This affirms that                                                               
Alaska  citizens do  not relinquish  their constitutional  rights                                                               
when they  enter the campus  and resolves a conflict  between the                                                               
University   of   Alaska  Board   of   Regents   and  the   state                                                               
constitution. He said the Alaska  Constitution specifies that the                                                               
right  to keep  and  bear arms  is an  individual  right and  the                                                               
university has  ignored that. He  maintained that  the university                                                               
has failed  to prove  it is  the legitimate  governing authority,                                                               
that  its policies  will  be effective  in  achieving the  stated                                                               
objectives, and  that the policy  is narrowly tailored to  meet a                                                               
compelling governmental  interest by the least  restrictive means                                                               
SENATOR KELLY  said the  university has  created a  gun-free zone                                                               
and  those  frequently  have  become  targets  for  the  mentally                                                               
unstable or those with political  agendas. He cited examples from                                                               
a  Marine   recruiting  center,  college  campuses,   and  public                                                               
schools. He  maintained that  posting signs  prohibiting carrying                                                               
guns actually serves as a magnet to those who intend to do harm.                                                                
1:46:48 PM                                                                                                                    
SENATOR WIELECHOWSKI joined the committee.                                                                                      
SENATOR KELLY  pointed out  that since  1950 most  mass shootings                                                               
have  occurred in  gun-free  zones, whereas  there  have been  no                                                               
proven problems on  the 150 campuses that  allow concealed carry.                                                               
He stressed the  need to be proactive and  reminded the committee                                                               
that this  is about a  constitutional right over which  the Board                                                               
of Regents has no jurisdiction.                                                                                                 
1:49:55 PM                                                                                                                    
CHAIR MCGUIRE  stated that  she has supported  a similar  bill in                                                               
the  past  and  she  supports  this one  because  of  the  Second                                                               
Amendment  right under  the U.S.  Constitution  and the  specific                                                               
right under  Article I,  Section 19  of the  Alaska Constitution.                                                               
She  read the  passage and  pointed out  that the  Alaska Supreme                                                               
Court has used  a sliding scale analysis when  assessing a right.                                                               
The more fundamental  the right, the higher the  scrutiny. If the                                                               
state were  to succeed in  upholding any kind of  infringement on                                                               
the right of  Alaska citizens to bear arms, the  means would have                                                               
to  justify the  ends,  be  narrowly tailored  and  have a  tight                                                               
connection. She  opined that the  University of  Alaska's current                                                               
policy would not meet that test.                                                                                                
She joined  the sponsor's  remarks about  bad actors  and offered                                                               
her  philosophy that  the more  layered rules  in this  area, the                                                               
harder it is  on people who abide by the  law. She recounted that                                                               
in her schools she would like  to see armed security guards and a                                                               
few armed teachers.                                                                                                             
She discussed conversations she's  had with Canadian counterparts                                                               
about the passion  for defending the Second  Amendment right. She                                                               
tells  them to  study U.S.  history regarding  the quartering  of                                                               
troops  and  the  reasons  for the  migration  from  England.  It                                                               
illustrates  the   power  of  the  government   compared  to  the                                                               
individual. She said she'd like  to hear the university's view of                                                               
Article I, Section 19, of  the Alaska Constitution and the Second                                                               
Amendment  of the  U.S.  Constitution and  how  they feel  Alaska                                                               
would be excluded.                                                                                                              
She  listed  the weapon  crime  statistics  she wanted  from  the                                                               
Department  of  Public Safety:  what  weapons  are used  in  what                                                               
crimes; do individuals committing those  crimes have a license to                                                               
carry; information  about misconduct involving  weapons statutes;                                                               
how DPS has implemented federal  restrictions on the purchase and                                                               
possession  of firearms;  and  how Title  47  and past  statutory                                                               
proposals relate to firearm possession.                                                                                         
She  requested   to  hear  from  university   police  departments                                                               
regarding  response  times;  campus safety  statistics;  and  the                                                               
presence  and types  of  weapons  and whether  or  not they  were                                                               
1:57:38 PM                                                                                                                    
SENATOR COGHILL commented that the  issue has risen to this level                                                               
because of the  people who have misused a  right. What's happened                                                               
is that  many now believe  the gun  is the problem  when actually                                                               
it's  bad  people.  He  stated agreement  with  the  sponsor  and                                                               
challenged anyone to  cite an example of a  responsible gun owner                                                               
who has gone into a gun-free zone and misused their weapon.                                                                     
He  thanked  the  sponsor  for  bringing  the  bill  forward  and                                                               
committed to look at the six points with a critical eye.                                                                        
2:01:00 PM                                                                                                                    
SENATOR COSTELLO asked what the current status is on campuses.                                                                  
SENATOR  KELLY  said concealed  carry  on  campus is  prohibited.                                                               
Someone who owns a gun and lives in  a dorm has to turn it in for                                                               
locked  storage and  the person  has to  sign it  in and  out. He                                                               
suggested Mr. Byrnes might walk through more specifics.                                                                         
SENATOR COSTELLO asked what precipitated the bill.                                                                              
SENATOR  KELLY  said  his  motivation   was  the  San  Bernardino                                                               
shooting, part of which took place in a gun-free zone.                                                                          
2:02:56 PM                                                                                                                    
SENATOR WIELECHOWSKI  highlighted the  broad scope of  Article 1,                                                               
Section  19, and  questioned  whether the  bill  is necessary  in                                                               
light of the  permission in the constitution. He  also asked what                                                               
analysis is done  to differentiate an elementary  school from the                                                               
SENATOR KELLY  said the reason  the bill is necessary  is because                                                               
of what occurred  at Umpqua State College. Oregon  state law said                                                               
people could carry  weapons on the campus but  the college policy                                                               
manual  said  carrying  weapons   on  campus  is  prohibited.  He                                                               
maintained that  the university  is going  outside the  bounds of                                                               
the  constitution asserting  it  is  not under  the  laws of  the                                                               
legislature or  the constitution.  He asked  Senator Wielechowski                                                               
to repeat the second question.                                                                                                  
SENATOR  WIELECHOWSKI  asked  the   rationale  for  not  allowing                                                               
firearms in courts  and the legislature but allowing  them on the                                                               
university campuses.                                                                                                            
SENATOR KELLY said the restrictions  have to be narrowly applied,                                                               
practical, and imposed  by a political subdivision  that has that                                                               
authority.  He  opined that  the  university  is lacking  in  all                                                               
three.  He  deferred  further  comment   on  that  point  to  the                                                               
university because he  isn't familiar with their  rules. He added                                                               
that he doesn't  believe the legislature has any  better rules in                                                               
that regard.                                                                                                                    
CHAIR MCGUIRE listed the locations  where firearms are restricted                                                               
and  opined  that they  are  all  ripe for  reconsideration.  She                                                               
stated  her   belief  that  the  posted   policy  of  prohibiting                                                               
concealed  carry  in  buildings  subject to  the  legislature  is                                                               
unconstitutional.  She   noted  that  no  one   from  either  the                                                               
Department  of  Law  (DOL)  or   Legislative  Legal  Services  is                                                               
available online.                                                                                                               
2:08:36 PM                                                                                                                    
SENATOR  WIELECHOWSKI  said  he'd  like to  talk  to  legislative                                                               
lawyers  and the  Department of  Law because  it's a  legal issue                                                               
related to the interpretation of the Alaska Constitution.                                                                       
CHAIR  MCGUIRE listed  the individuals  available to  testify and                                                               
answer questions.                                                                                                               
2:10:04 PM                                                                                                                    
CALLIE  CONERTON, Student  Body President,  University of  Alaska                                                               
Southeast  and   Vice  Chair,   Coalition  of   Student  Leaders,                                                               
expressed concern with the current draft  of SB 174. She said the                                                               
university  should be  able to  prohibit concealed  carry in  the                                                               
multiple buildings  dedicated towards K-12 programing.  The State                                                               
of  Alaska doesn't  require  a concealed  carry  permit so  there                                                               
would be no  guarantee that people carrying guns  on campus would                                                               
know about  proper firearm  safety. She  thanked the  sponsor and                                                               
his  staff  for   including  four  of  the   six  amendments  the                                                               
university suggested.                                                                                                           
MS. CONERTON  concluded her testimony by  informing the committee                                                               
that  the Coalition  of Student  Leaders collectively  opposes SB                                                               
174 as currently written.                                                                                                       
CHAIR  MCGUIRE asked  her  to describe  the  four amendments  the                                                               
sponsor accepted.                                                                                                               
MS.   CONERTON  listed   the  changes   in  concealed   carry  in                                                               
dormitories and  the right  of the university  to take  a firearm                                                               
away  from someone  who  poses  a risk  of  harm  to others.  She                                                               
requested Mr. Byrnes complete the list.                                                                                         
CHAIR MCGUIRE asked  Ms. Conerton to identify,  either in writing                                                               
or supplemental  testimony, which campuses and  buildings have K-                                                               
12  programing.  That information  would  be  used in  the  legal                                                               
analysis of the bill.                                                                                                           
2:14:44 PM                                                                                                                    
JOE BYRNES, Staff, Senator Pete  Kelly, Alaska State Legislature,                                                               
informed   the   committee   that  the   four   amendments   were                                                               
incorporated into  the committee substitute the  Senate Education                                                               
Committee passed.  These are  located on page  2, lines  3-12. He                                                               
read the following exceptions: 1)  when the behavior of a student                                                               
or an employee demonstrates that  the student or employee poses a                                                               
risk of  harm to  self or  others; 2)  in student  dormitories or                                                               
other shared  living quarters; 3) in  university facilities where                                                               
health services,  counseling services, or other  services related                                                               
to  sexual  harassment  or  violence  are  provided;  and  4)  in                                                               
university  facilities during  adjudication of  staff or  student                                                               
disciplinary issues.                                                                                                            
2:15:35 PM                                                                                                                    
SENATOR MICCICHE joined the committee.                                                                                          
CHAIR MCGUIRE  expressed support for  lines 9-11, and  the caveat                                                               
language on  page 2, lines  18-20: "policies adopted  or enforced                                                               
under this paragraph may not  abridge the right of the individual                                                               
guaranteed  by art.  I, sec.  19,  Constitution of  the State  of                                                               
Alaska, to bear arms in defense of self or others;".                                                                            
MR. BYRNES noted that the bill  is modeled after Title 29 and the                                                               
municipal regulation of firearms.                                                                                               
SENATOR  WIELECHOWSKI asked  him to  discuss the  amendments that                                                               
were rejected.                                                                                                                  
MR. BYRNES said one related to  K-12 facilities and the other was                                                               
concealed handgun permits.                                                                                                      
SENATOR  WIELECHOWSKI  asked if  the  request  was to  require  a                                                               
permit to carry a concealed handgun.                                                                                            
MR. BYRNES said that's correct.                                                                                                 
2:17:23 PM                                                                                                                    
MICHAEL HOSTINA,  General Counsel,  University of  Alaska System,                                                               
Fairbanks, Alaska, offered to answer  legal questions that relate                                                               
to SB 174.                                                                                                                      
CHAIR MCGUIRE  asked him to  explain the source of  authority for                                                               
the University  of Alaska policy;  how the policy works;  and why                                                               
it meets the sliding scale  requirement articulated by the Alaska                                                               
Supreme Court  for regulating yet  not abridging  an individual's                                                               
right to bear arms.                                                                                                             
MR. HOSTINA said the source  of authority is the constitution and                                                               
the  statutory provision  that  allows the  Board  of Regents  to                                                               
adopt   reasonable  regulations   for  the   governance  of   the                                                               
university. He reminded the committee  that the university is not                                                               
a  political  subdivision  of  the state  covered  by  Title  29.                                                               
Rather,  the  university  is  a  constitutional  corporation  and                                                               
instrumentality of  the state  as defined  by the  Alaska Supreme                                                               
CHAIR MCGUIRE asked how that  meaningfully impacts the discussion                                                               
today regarding the university's right to govern in this area.                                                                  
MR. HOSTINA  said he mentioned  it primarily because a  number of                                                               
people  have  testified  that  the   university  is  a  political                                                               
subdivision of the  state. That isn't the case  so the university                                                               
is not governed by Title  29. The constitution provides the Board                                                               
of  Regents  the authority  to  govern  the university,  but  not                                                               
independent of  applicable law.  It does  provide some  basis for                                                               
the regents  to determine the  academic sphere and  safely manage                                                               
campus life.                                                                                                                    
MR.  HOSTINA  also pointed  out  that  the  Board of  Regents  is                                                               
uniquely   responsible   for  governing   university   buildings,                                                               
programs,  personnel, and  students. The  U.S. Supreme  Court has                                                               
clearly said  the Second  Amendment protections  do not  apply to                                                               
sensitive  areas  like  schools,  hospitals, and  courts  to  and                                                               
government  buildings. Thus,  there  is a  strong legal  argument                                                               
against  engaging  in  a  strict   scrutiny  analysis  where  the                                                               
regulations are only impacting government buildings.                                                                            
He stated  that the Board of  Regents wants to be  able to manage                                                               
very  clear, individual  situations that  pose specific  risks on                                                               
university  property.  He  listed troubled  students,  situations                                                               
paralleling  domestic violence  centers and  shelters, areas  and                                                               
programs dedicated to K-12, dormitories  and places where alcohol                                                               
is served.                                                                                                                      
MR. HOSTINA explained that current  policy allows people to bring                                                               
firearms on  campus for specific  events, turn the weapon  in for                                                               
secure storage in the dorm setting,  secure the weapon at home in                                                               
faculty housing, and lock a weapon in a vehicle.                                                                                
2:23:51 PM                                                                                                                    
MATT  COOPER, Associate  Counsel,  University  of Alaska  System,                                                               
Fairbanks, Alaska, noted that the  third part of the question was                                                               
why the current policy meets constitutional requirements.                                                                       
MR. HOSTINA  restated that the  U.S. Supreme Court has  said that                                                               
certain exceptions  are carved  out of  the Second  Amendment for                                                               
sensitive  areas such  as schools  and government  buildings. The                                                               
Alaska Supreme  Court has  not addressed that  issue head  on, he                                                               
said, but has  evaluated and upheld restrictions  related to K-12                                                               
with  respect   to  alcohol  and   age.  It's   about  government                                                               
responsibility  for  its own  premises,  staff,  and students  as                                                               
opposed to  regulating the general  public. The  university rules                                                               
are  administrative and  apply  only on  the  premises and  under                                                               
certain situations.                                                                                                             
CHAIR MCGUIRE  commented on what  the forefathers would  think of                                                               
this discussion and questioned whether  the university would have                                                               
a similar  view of the rights  outlined in Article 1,  Section 1,                                                               
and Article 1, Section 3, of the Alaska Constitution.                                                                           
2:27:49 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if the  allowance for  the individual                                                               
right to  keep and bear arms  would apply to the  university as a                                                               
state corporation.                                                                                                              
MR. HOSTINA said the issue here  is whether the rules in Title 29                                                               
that apply  to municipalities would  apply to the  university. It                                                               
is the university's position that they do not, he said.                                                                         
CHAIR MCGUIRE  asked why the University  of Alaska, as an  arm of                                                               
state  government and  as a  constitutional corporation,  has the                                                               
right to abridge  Article 1 rights under the  Constitution of the                                                               
State of Alaska.                                                                                                                
MR. HOSTINA  replied the  university does not  have the  right to                                                               
abridge constitutional  rights, but  it has  the right  to impose                                                               
reasonable limitations just  as the state has the  right to limit                                                               
the  right to  bear arms  in areas  like K-12,  areas that  serve                                                               
alcohol, the legislature, domestic  violence shelters, and a home                                                               
where the responsible adult has  not agreed to the concealment of                                                               
firearms.  To date  those reasonable  limitations  have not  been                                                               
SENATOR WIELECHOWSKI  asked if he  believes that the  state would                                                               
be violating  the constitution by  passing the bill  as currently                                                               
MR. HOSTINA answered no.                                                                                                        
SENATOR  WIELECHOWSKI  asked  him  to  walk  through  the  strict                                                               
scrutiny analysis the court would apply.                                                                                        
MR.  HOSTINA  reiterated that  it  is  unlikely that  the  Alaska                                                               
Supreme Court would apply strict  scrutiny since this involves an                                                               
arm of government  managing its own premises.  The university has                                                               
very  specific situations  that  parallel  other restrictions  in                                                               
state  law  on the  carriage  of  weapons  and firearms,  and  he                                                               
believes the university would survive  whatever level of scrutiny                                                               
is applied.                                                                                                                     
2:33:52 PM                                                                                                                    
CHAIR MCGUIRE asked how university  students become an arm of the                                                               
government. She also  mentioned the Hyde Amendment  and asked how                                                               
the  university  would  treat  the First  Amendment  right  of  a                                                               
student to speak.                                                                                                               
MR. HOSTINA  said the university  is subject to  the restrictions                                                               
in  both  the  Alaska  Constitution  and  the  U.S.  Constitution                                                               
regarding freedom of speech and  cannot regulate the speech based                                                               
on  content.  However, it  can  regulate  speech based  on  time,                                                               
place, and manner restrictions; areas  of the campus that are not                                                               
open to  speech; and areas  of the  campus that are  reserved for                                                               
administration.  The  right  to  speak is  well  established  and                                                               
rights have begun to be established  in the area where the Second                                                               
Amendment has  been interpreted as providing  an individual right                                                               
to bear arms. Thus far the  courts have said the government has a                                                               
right  to  regulate  its own  premises  in  identified  sensitive                                                               
2:38:24 PM                                                                                                                    
CHAIR MCGUIRE asked how students at  the university are an arm of                                                               
the government.                                                                                                                 
MR. HOSTINA said  he doesn't believe that students are  an arm of                                                               
the government,  but they are subject  to reasonable restrictions                                                               
that  apply to  the  area  they are  entering.  The same  analogy                                                               
applies to  speech; when you  enter a regulated area,  you accept                                                               
the regulations that apply in that area.                                                                                        
2:41:02 PM                                                                                                                    
CHAIR MCGUIRE disagreed with the analogy.                                                                                       
SENATOR MICCICHE requested an at-ease.                                                                                          
2:41:50 PM                                                                                                                    
At ease                                                                                                                         
2:41:54 PM                                                                                                                    
CHAIR MCGUIRE reconvened the meeting.                                                                                           
SENATOR MICCICHE  asked him  to explain  his testimony  about the                                                               
need to  regulate concealed carry  in light of the  exemptions on                                                               
page 2, lines 4-12. He noted he was speaking to version N.                                                                      
2:44:06 PM                                                                                                                    
MR. HOSTINA said the university  appreciates the areas in version                                                               
N that  permit management  and does  not oppose  the bill  in its                                                               
current form. However, it could be improved in three respects.                                                                  
CHAIR  MCGUIRE  asked for  clarification  that  the committee  is                                                               
considering version N and Senator Coghill moved version N.                                                                      
CHAIR  MCGUIRE summarized  the foregoing  discussion for  Senator                                                               
Micciche and  noted his point  was good regarding areas  that are                                                               
permitted  and whether  or  not  that right  to  permit would  be                                                               
abused. She noted she asked  the committee to think about whether                                                               
or not  a permitted entity, agency,  group becomes an arm  of the                                                               
state  regulating itself.  If so,  that's a  slippery slope,  she                                                               
said. It's something  that should be discussed on  the record and                                                               
have some sideboards.                                                                                                           
SENATOR  COGHILL noted  the memo  to  the sponsor  that says  the                                                               
right  to  keep  and  bear  arms  is  based  on  two  fundamental                                                               
principles: the right  to privacy and the right to  bear arms. He                                                               
said the  amendments tried  to consider  public safety  and those                                                               
two bedrock principles and enforce  them in the least restrictive                                                               
manner. He noted  that an individual right can be  managed but it                                                               
does not dissipate.                                                                                                             
2:49:18 PM                                                                                                                    
JAMES   JOHNSEN,   President,   University  of   Alaska   System,                                                               
Fairbanks,  Alaska,  thanked the  sponsor  for  the four  changes                                                               
reflected in the current committee  substitute (CS), [version N].                                                               
They  will allow  the  Board  of Regents  to  manage firearms  in                                                               
common,  high  conflict, high  risk  situations.  That said,  the                                                               
university believes  the bill  could be  improved in  three areas                                                               
that are not addressed in the  CS. Two are substantive and one is                                                               
First, the university requests the  ability to regulate concealed                                                               
carry of handguns or knives  in a manner consistent with existing                                                               
law  regarding K-12.  He emphasized  that there  is no  intent to                                                               
regulate  outside the  facilities where  dedicated K-12  programs                                                               
are  occurring or  at times  when those  programs are  not taking                                                               
place. He  offered to work  with the  sponsor and committee  on a                                                               
provision  that  is specifically  and  narrowly  focused on  this                                                               
Second, the  university supports  concealed carry with  a permit.                                                               
This makes sense  in conjunction with other  management tools and                                                               
would  ensure  that a  student  or  employee  who is  carrying  a                                                               
concealed weapon  would have some  training and knowledge  of gun                                                               
safety and  the applicable law.  Of course, people  with certain,                                                               
but not all, criminal histories  would be excluded from obtaining                                                               
a permit.                                                                                                                       
Third,  the  university  requests  a  technical  fix  to  include                                                               
disputes  in  the  section addressing  disciplinary  issues.  The                                                               
university   has   lots   of   disputes   including   grievances,                                                               
administrative     reviews,     and     harassment/discrimination                                                               
complaints. They don't typically  involve discipline but disputes                                                               
are emotional and volatile.                                                                                                     
CHAIR  MCGUIRE stressed  that  the tone  of  the questions  isn't                                                               
meant to convey  disrespect for the university's right  to have a                                                               
position on the subject.                                                                                                        
2:55:40 PM                                                                                                                    
CHAIR  MCGUIRE held  SB 174  in committee  with public  testimony