Legislature(2011 - 2012)CAPITOL 120
03/30/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB88 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 88 | TELECONFERENCED | |
| += | HB 168 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 88 - USE OF FOREIGN LAW
1:08:08 PM
CHAIR GATTO announced that the [only] order of business would be
HOUSE BILL NO. 88, "An Act prohibiting a court, arbitrator,
mediator, administrative agency, or enforcement authority from
applying a law, rule, or provision of an agreement that violates
an individual's right under the Constitution of the State of
Alaska or the United States Constitution." [Before the
committee was CSHB 88(STA); included in members' packets was a
proposed committee substitute (CS) for HB 88, Version 27-
LS0333\D, Bailey, 3/30/11.]
1:08:55 PM
KAREN SAWYER, Staff, Representative Carl Gatto, Alaska State
Legislature, on behalf of the sponsor, Representative Gatto,
explained that HB 88 would stipulate that in Alaska's courts,
application of a foreign law in violation of an individual's
constitutional rights shall not be permitted.
1:09:43 PM
REPRESENTATIVE THOMPSON moved to adopt the proposed committee
substitute (CS) for HB 88, Version 27-LS0333\D, Bailey, 3/30/11,
as the working document. There being no objection, Version D
was before the committee.
MS. SAWYER went on to explain that [both CSHB 88(STA) and
Version D] specify that proposed AS 09.68.140 isn't addressing
tribal law and would not apply to corporations, partnerships, or
other forms of business associations. She also relayed that a
legal opinion by the Department of Law (DOL) dated March 21,
2011, indicates that under the Supremacy Clause of the U.S.
Constitution, HB 88 would be preempted in situations where it
conflicts with a federal law or with a treaty that the United
States is a party to. She offered her understanding that two
states have passed, and sixteen other states are considering
passing, legislation similar to HB 88, which is intended to
statutorily emphasize that both the Constitution of Alaska and
the U.S. Constitution provide the fundamental basis for civil
law [in Alaska]. She offered her belief that HB 88 is not
intended to address the issue of religion or First Amendment
rights, and that nothing in HB 88 would prevent a person from
exercising his/her right to freedom of religion. In conclusion,
she noted that Section 2 of Version D [in part] read:
LEGISLATIVE INTENT. It is the intent of the
legislature that AS 09.68.140, enacted by sec. 3 of
this Act, does not address, directly or indirectly,
any question of tribal law or the application of
tribal law or otherwise address the intersection
between state law and tribal law.
1:14:07 PM
JEFFREY A. MITTMAN, Executive Director, American Civil Liberties
Union of Alaska (ACLU of Alaska), after mentioning that he'd
submitted written testimony, offered his understanding that
under both the Alaska State Constitution and the U.S.
Constitution, the courts are already required to look to those
documents for clear statements of public policy. So to the
extent that HB 88 seeks to address the issue of public policy
and constitutional rights, it simply reiterates the existing
state of the law, and therefore would not accomplish anything
legally. Given that, the question then becomes what negative
impacts would HB 88 have, and this issue is addressed in the
aforementioned written testimony. For example, even though
Version D exempts business entities, it is unclear whether the
bill would still apply in situations wherein a business entity
has a contract with an individual, and such lack of clarity
would only serve to entangle business contracts in uncertainty,
which both businesses and courts dislike.
MR. MITTMAN went on to say:
What you're beginning to do is, you're negatively
impacting business relationships and the standing of
the state of Alaska. If an individual can disavow a
contract unilaterally without, potentially, a
reasonable basis, or, more importantly, if an
individual can raise uncertainty as to the validity of
a contract, that's a negative impact for business
relations even if businesses are excluded. Moreover,
we have significant concerns - ... which we've raised
in our written testimony - as to the intent of the
bill. We note - ... as has been noted in the
[written] testimony - that the language of the
legislation itself references ... international law;
however, the initial sponsor statement and some of the
supporting documentation and testimony, which would be
reviewed by courts to determine legislative intent, do
reference shari'a law. If we are not intending it to
apply to, for example, shari'a law, the question is
raised, "What does it apply to?" And on that basis we
would have some concerns as to whether the courts
would find that this is constitutionally valid.
Again, whether or not courts would view [it] that way,
it raises uncertainty, it could interfere with
arbitration rights, it could interfere with
contractual rights. So ... without solving any
problems, it simply ... [raises] negative impacts.
MR. MITTMAN said that for those reasons and the reasons set
forth in the aforementioned written testimony, the ACLU of
Alaska urges the committee not to support HB 88.
1:17:33 PM
ROBERT SPENCER, American Freedom Defense Initiative (AFDI),
offered his belief that HB 88 would restrict the political
aspects of Islamic law that are at variance with constitutional
freedoms but would not restrict a person's right to practice the
religion of his/her choice. After providing comments regarding
hate crimes, shari'a, and freedom of speech, he predicted that
if HB 88 is not adopted, that "shari'a provisions would be
introduced into the United States," and characterized HB 88 as
being necessary.
1:22:20 PM
NONIE DARWISH, Director, Former Muslims United, mentioned that
she is an author and that she lived under Islamic law - shari'a
- for 30 years [before moving to the United States], and
described her experiences and treatment and the treatment of
women and girls under shari'a. She pointed out that a law,
regardless of what it is called, is not a religion - a law
affects everyone in a society regardless of his/her religious
beliefs - and opined that as a legal system, shari'a should
never be practiced in the United States and should instead be
defended against. In conclusion, she asked the committee to "do
the right thing," and prevent shari'a from being used as the
law, offering her belief that true freedom and true democracy
cannot exist under shari'a, which, she opined, has nothing to do
with religion. In responding to a hypothetical question, and
citing England as an example, she predicted that once any
provision of shari'a gains a foothold in U.S. courts, it will be
very difficult to remove.
1:37:40 PM
SAM OBEIDI, Islamic Community Center of Anchorage Alaska, Inc.
(ICCAA), offered his belief that the Muslims who've chosen to
live in America have already chosen to live under the U.S.
Constitution and have adopted it as the basis of their civil
law, and opined that there is nothing, therefore, to fear from
shari'a. In response to a question, he pointed out that as long
as he is living in the United States, he is obliged to abide by
the laws of the United States and the U.S. Constitution, and
understands that if he were to commit a wrongdoing while living
here, that he would be judged accordingly under those laws and
Constitution. He added his understanding that it would be the
same in other countries: if a person commits a wrongdoing while
in a foreign country, he/she could not be tried under the laws
of his/her homeland.
REPRESENTATIVE PRUITT observed that HB 88 doesn't contain any
reference to shari'a.
MR. MITTMAN, in response to a question, indicated that under the
bill, the validity/applicability of any contractual choice-of-
law provisions would have to be reviewed by the court on a case-
by-case basis. Under existing U.S. and Alaska law, he
explained, there are already exceptions to choice-of-law
provisions, with one exception being that such provisions must
not be applied in unconstitutional ways or in ways that deny due
process.
CHAIR GATTO indicated that HB 88, by providing guidelines to the
courts, is intended to address situations in which a person in
Alaska wishes to follow laws that are in conflict with those of
the United States and Alaska, clarifying that any such person
would be precluded from doing so. Operating under dual legal
systems can be complicated, and therefore those who wish to
avoid such complications in Alaska's courts should support
HB 88, he suggested.
1:51:03 PM
MARY ELLEN BEARDSLEY, Assistant Attorney General,
Commercial/Fair Business Section, Civil Division (Anchorage),
Department of Law (DOL), in response to a hypothetical question
involving a polygamous family visiting Alaska from another
country, indicated that under the bill, if one of the family
members sought redress in an Alaska court regarding his/her
marriage, the court would first have to determine whether there
were any constitutional issues involved, whether they were
fundamental, and whether any constitutional rights were being
violated. In response to another question, she said her
interpretation of HB 88 is that it would only pertain to civil
law, not criminal law.
REPRESENTATIVE GRUENBERG concurred, noting that HB 88 is
proposing to alter Title 9 - Code of Civil Procedure - rather
than Title 11 - Criminal Law; therefore, the bill wouldn't have
any effect on criminal litigation. He then offered his
interpretation that because proposed AS 09.68.140(f) would
exempt corporations, partnerships, and other forms of business
associations, the bill would perhaps only be applicable in
situations involving [noncommercial] property rights or
ownership in real estate.
MS. BEARDSLEY pointed out that even then an Alaska court might
not have jurisdiction over the matter if the initial action
between the parties took place in the foreign country and that's
where the property was located. Furthermore, under the bill,
the courts would still have to determine whether any fundamental
constitutional rights had been violated.
CHAIR GATTO surmised that the bill wouldn't apply in situations
where someone from Alaska did something illegal under the laws
of a foreign country while in that country.
REPRESENTATIVE GRUENBERG questioned, then, whether the bill
would have any effect on anything at all.
REPRESENTATIVE HOLMES referred to HB 88's proposed
AS 09.68.140(b), which addresses contractual choice-of-law
provisions, and proposed AS 09.68.140(c), which addresses
contractual choice-of-venue/forum provisions. Noting that she's
a contract attorney, Representative Holmes pointed out that
parties to contracts generally don't want to leave it up to the
courts to decide what laws shall apply or where any litigation
shall occur. Instead, parties want such issues addressed
beforehand, and so commonly include choice-of-law and/or choice-
of-venue/forum provisions in the contract itself. She expressed
concern that the language in the bill pertaining to such
contractual provisions would require additional court
involvement.
2:02:46 PM
MS. BEARDSLEY concurred that proposed subsections (b) and (c)
would require additional court involvement because an Alaska
court would first have to determine whether the laws of the
country in question were in essence almost equal to what the
United States and Alaska provide to individuals, whether the
right that the individual claims is being violated is similar to
one that the other country provides, and, if not, then whether
that right under the U.S. Constitution or Alaska State
Constitution really is being violated. She referred to this
type of court involvement as a bench trial, where the
determinations would be made exclusively by the judge, and
predicted that such court involvement would be fairly protracted
and result in a lot of extra work for the parties.
REPRESENTATIVE HOLMES expressed concern that HB 88 would have
very detrimental effects on international contracts between
individuals, particularly given the importance of choice-of-law
and choice-of-venue/forum provisions in such contracts. For
example, an unscrupulous party could use the language of the
bill to call heretofore agreed-upon contractual provisions into
question.
MS. BEARDSLEY relayed that she'd addressed this issue in her
March 21, 2011, legal opinion. Foreign entities might look at
legislation such as HB 88 and decide not to do business in
Alaska because of the bill's proposed stipulations regarding
contractual choice-of-law and choice-of-venue/forum provisions.
The potential for these stipulations to be a problem resulted in
the inclusion of proposed subsection (f)'s exemption for
corporations, partnerships, and other forms of business
associations.
REPRESENTATIVE HOLMES pointed out that that exemption doesn't
include sole proprietorships.
MS. BEARDSLEY concurred that such individuals - sole
proprietorships - would not be exempt from the bill.
2:07:18 PM
REPRESENTATIVE HOLMES offered her understanding that HB 88 is
still unclear with regard to whether it would apply in instances
involving a contract between an individual and a corporation,
partnership, or other form of business association, such as a
nondisclosure agreement or an employment contract.
MS. BEARDSLEY said that according to her interpretation, the
bill as currently written would apply exclusively to
individuals. For example, under the bill, if an individual
enters into a contract with a foreign entity, he/she could use
HB 88 if he/she felt that his/her constitutional rights were
being violated.
REPRESENTATIVE HOLMES reiterated that contracts generally do
contain choice-of-law and choice-of-venue/forum provisions, and
she is therefore still concerned about the bill's potential
negative impacts on commerce in Alaska, such as an increase in
court involvement and litigation, and the likelihood that
businesses will simply start choosing not to enter into
contracts with Alaskans.
MS. BEARDSLEY, in response to a question, said she has
difficulty envisioning how HB 88 would ever be applied,
particularly given that the courts already have the ability to
reform and modify contracts.
MR. MITTMAN added that under existing court public-policy rules,
the only situations in which HB 88 would be applicable are those
in which the court can already apply [stipulations such as those
included in the bill]. Again, the ACLU of Alaska's concern is
that HB 88 would have a negative impact on business in Alaska
because it raises uncertainty and could increase litigation
costs.
2:11:50 PM
PAMELA GELLER, American Freedom Defense Initiative (AFDI),
characterized HB 88 as simple, clear-cut legislation that would
prohibit the violation of an individual's rights under the
Alaska State Constitution or the U.S. Constitution, offering her
belief that opposition to HB 88 merely illustrates the need for
such legislation. Why would anyone oppose a law that seeks to
prevent foreign law from undermining fundamental constitutional
liberties, she queried, and indicated her belief that HB 88
wouldn't affect contractual choice-of-law or choice-of-
venue/forum provisions because the constitutions already permit
parties in civil cases to waive their constitutional right to a
jury trial. However, there is nothing in either constitution
that allows a person to waive his/her constitutional right to
equal protection under the law, and thus HB 88 is necessary to
ensure that no foreign law would be used to force a person to
waive that constitutional right. Citing some examples, she
asserted that there are cases of what she called shari'a
jurisprudence occurring in the United States, and pointed out
that regardless that the initial rulings in some of those cases
were later overturned, the fact that there were even such
rulings that had to be overturned raises the questions of why
such [mistaken] rulings were allowed to occur in the first place
and why the courts weren't recognizing the threat from shari'a.
In conclusion, and citing situations occurring in Europe, she
opined that there is a need to stand against shari'a and anyone
who defies American law while living in this country, and that
it is time to stand up for the American rule of law and
individual rights for all.
2:20:51 PM
JANET LEVY, after mentioning that she is a freelance writer and
political activist, pointed out that although some might argue
that [courts should provide for] shari'a because they provide
for Jewish law and Catholic canon law, there isn't really
absolute freedom of religion in the United States, since
pluralistic marriages, human sacrifice, and religious cults, for
example, aren't allowed despite that the practice of such things
are advanced by some religions. She offered her understanding
that thus far 20 states have felt it necessary to "reaffirm
American constitutional law - state and federal - due to a
perceived increased-threat from other, outside legal systems."
She then offered her understanding of how shari'a differs from
both Jewish law and Catholic canon law, and how it conflicts
with the laws of the United States and its constitutionally-
guaranteed freedoms, and - citing England as an example -
cautioned against allowing such a law to become a replacement
for constitutional law - the law of the land in the United
States.
2:28:22 PM
PATRICK J. TRAVERS, Reverend, J.D., J.C.L., Vicar General and
Judicial Vicar, Diocese of Juneau; Alaska Catholic Conference of
Bishops, noting that he was speaking on behalf of the Alaska
Catholic Conference of Bishops, and then outlining aspects of
Catholic canon law, indicated that the Alaska Catholic
Conference of Bishops' concern with HB 88, as expressed in its
letter dated March 30, 2011, is that the term, "foreign law" as
used in the bill as currently written could be construed to be
referring to Catholic canon law, thereby upsetting the
coexistence of secular courts and canon tribunals, which often
rely upon contractual provisions - including choice-of-law and
choice-of-venue/forum provisions - to address interactions with
secular courts and law. He indicated that the Alaska Catholic
Conference of Bishops, while not taking a position on the issue
of whether legislation such as HB 88 might be necessary, is
simply suggesting that changes be made to HB 88 to address the
organization's concerns, perhaps, for example, by adopting the
more general language used in similar proposed legislation in
Arizona that reads [original punctuation, though with
capitalization changes, provided]:
A court, arbitrator, administrative agency or other
adjudicative, mediation or enforcement authority shall
not enforce a foreign law if doing so would violate a
right guaranteed by the constitution of this state or
of the United States or conflict with the laws of the
United States or of this state.
2:43:56 PM
MARIA RENSEL expressed appreciation for HB 88, and said she
would be speaking in favor of it, now believing that its
adoption is necessary in order to address such things as un-
ratified international conventions, for example, that could
nonetheless be used to inform court decisions in Alaska.
2:48:21 PM
DAVID E. HECKERT, mentioning that he has provided written
comments to the committee, and referring to a hypothetical
example, opined that HB 88 would be of great benefit to people
in Alaska - whether they be citizens, visitors, or immigrants -
providing them a tool with which to seek redress from oppressive
foreign laws. In conclusion, he expressed his discomfort that
people would even question whether the Constitution should be
the supreme law of the land in America.
CHAIR GATTO announced that HB 88 [Version D] would be held over.