Legislature(2011 - 2012)CAPITOL 120
04/01/2011 01:00 PM JUDICIARY
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* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 88 - USE OF FOREIGN LAW 1:44:52 PM CHAIR GATTO announced that the next 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); adopted as the working document on 3/30/11 was the proposed committee substitute (CS) for HB 88, Version 27-LS0333\D, Bailey, 3/30/11.] The committee took an at-ease from 1:45 p.m. to 1:48 p.m. 1:49:12 PM REPRESENTATIVE KELLER made a motion to adopt [a written] Conceptual Amendment 1, which [although incorrect with regard to placement and text] read [original punctuation provided]: Page2, line 28 (g) In this section, "foreign law" means a law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States and the territories of the United States. "Foreign law" does not mean nor shall it include a law currently established in Alaska statute, or Case Law. REPRESENTATIVE GRUENBERG objected for the purpose of discussion. REPRESENTATIVE KELLER indicated his belief that Conceptual Amendment 1 would serve as a grandfather clause, thereby addressing concerns raised during the bill's last hearing that HB 88's prohibition of foreign law could mistakenly be applied in situations involving Catholic canon law, for example. REPRESENTATIVE GRUENBERG, citing his nescience regarding all of Conceptual Amendment 1's possible implications, expressed concern that its adoption may have some significant ramifications. The committee took an at-ease from 1:53 p.m. to 1:57 p.m. CHAIR GATTO clarified that Conceptual Amendment 1 is proposing to add to page 3, line 1, of Version D - after the words, "territories of the United States." - the words: "Foreign law" does not mean nor shall it include a law currently established in Alaska statute, or Case Law. REPRESENTATIVE KELLER concurred, and offered his understanding that via either statute or case law, Catholic canon law is currently being applied by the courts. 2:00:48 PM MARY ELLEN BEARDSLEY, Assistant Attorney General, Commercial/Fair Business Section, Civil Division (Anchorage), Department of Law (DOL), in response to a question, relaying that she would prefer to have a little more time to research the issue, characterized Conceptual Amendment 1 as extremely broad, and expressed concern that its ending word, "Law" could encompass a lot of things. 2:01:42 PM PETER PUTZIER, Senior Assistant Attorney General, Opinions, Appeals, & Ethics, Civil Division (Anchorage), Department of Law (DOL), on the issue of tribal law, explained that in suggesting the wording [currently in Version D's legislative intent section and proposed AS 11.61.140(g)] regarding HB 88's inapplicability to tribal law and its definition of the term, "foreign law", respectively, his assumptions were that tribal law was not the focus of the bill, and, even if it were the focus, that the legislature doesn't have any authority to restrict the inherent authority of tribes. Specifically, because the term "foreign law" is being defined in the bill as being a law outside the jurisdiction of the United States and its territories, then including language stating that foreign law does not mean nor include tribal law is unnecessary given that federally- recognized tribes - and certainly the tribes in the state of Alaska - are within the jurisdiction of the United States. And to clarify that point further, Version D now includes a legislative intent section that reads: 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. 2:05:05 PM KAREN SAWYER, Staff, Representative Carl Gatto, Alaska State Legislature, on behalf of the sponsor, Representative Gatto, in response to a question, concurred that Version D does incorporate Mr. Putzier's suggested wording. MR. PUTZIER, in response to a question, offered his belief that including the aforementioned legislative intent section would be sufficient, and that tribal law is not, in any event, implicated under the term, "foreign law" as defined in the bill. In response to another question, he said he tends to agree with Ms. Beardsley that Conceptual Amendment 1 is potentially complicated. He said he questions, for example, whether its proposed exclusion - [although perhaps intended to address] the application of Catholic canon law - also includes regulations or, given that it specifies only Alaska's statutes, laws from other states. He opined that Conceptual Amendment 1 ought to be scrutinized further to ensure that it hasn't any unintended consequences. In response to a further question, he said he'd have to do more research regarding the underlying concern about the application of Catholic canon law before being able to speak to whether Conceptual Amendment 1 would adequately address that concern. REPRESENTATIVE HOLMES surmised that because Catholic canon law isn't - to the best of her knowledge - contained in Alaska's statutes or case law, that Conceptual Amendment 1 wouldn't really accomplish the stated goal. REPRESENTATIVE KELLER, concurring with that point and acknowledging that Conceptual Amendment 1 is broader than he had in mind, withdrew Conceptual Amendment 1. REPRESENTATIVE GRUENBERG offered an example of a horrendous spousal-rape-and-subsequent-divorce case he was involved with many years ago that was ultimately settled but in which had the courts allowed for the application of Jewish law, a terrific injustice could have resulted, and pointed out that conflict of laws constitutes a very complex body of law, one derived solely from judicial rulings, upon which a bill such as HB 88 would have a [huge] effect. 2:17:54 PM MS. SAWYER indicated that Janet Levy - who spoke during HB 88's last hearing - relayed in an e-mail that her attorneys assert that the [U.S. Supreme Court] has made it clear that under the First Amendment, intra-church/mosque/synagogue disputes remain internal unless neutral principles of law can be applied. CHAIR GATTO offered his belief that HB 88 is meant to address conflicts between religious law and secular law. MS. SAWYER pointed out, however, that HB 88 only addresses civil law, not religious law, though she acknowledged that in some foreign jurisdictions, civil law is associated/intertwined with religious law. REPRESENTATIVE GRUENBERG indicated a belief that how the courts address [various potentially-conflicting laws] is too complex to be laid out in statute because all such cases are fact driven, and that to attempt to do so would be Procrustean in nature. The principles, whether they be equitable principles or choice- of-law principles or contractual principles, are all designed to make the legal system work in instances involving private disputes. REPRESENTATIVE KELLER offered his belief that the bill merely states a legislative preference that the courts not use a law that isn't derived from the constitutions. REPRESENTATIVE LYNN disclosed that he is a practicing Catholic, and relayed that he intends to vote "yes" on HB 88. REPRESENTATIVE HOLMES, after mentioning that she agrees with many of Representative Gruenberg's comments, expressed concern that from the discussion she's heard thus far, the committee appears to be trying to protect certain types of religious law while outlawing other types of religious law - specifically, trying to protect Catholic canon law and Jewish law while outlawing Shari'a law. For her, she relayed, this raises legal questions - for example, how would one draw that line - as well as ethical and moral concerns. Furthermore, as previously mentioned, the bill is addressing a very complex area of law and will therefore have huge consequences for international business and for Alaska's reputation as a welcoming business venue, and will complicate contractual choice-of-law decisions for individuals. Extensive research illustrates that even when the issue of shari'a is raised in court, judges are already refusing to apply it, stating that in this country, this country's laws and constitution apply. Therefore, by attempting to protect against something that isn't actually happening in the courts, a whole host of problems regarding conflict of laws and international business will instead be created. For these reasons, she relayed, she would be voting against HB 88. CHAIR GATTO, citing England as an example, argued that judges don't always make correct decisions, and offered his belief that even incorrect judicial rulings can create legal precedence. 2:27:19 PM REPRESENTATIVE THOMPSON referred to the DOL's March 21, 2011, legal opinion included in members' packets - specifically to the portion that read, "HB 88 might affect a foreign entity's willingness to do business with individuals or businesses in Alaska if it knows that provisions of the contract may be void by law should HB 88 become law" - and expressed concern that the bill would hurt Alaskans economically when they attempt to conduct business with entities outside of Alaska. He indicated a desire, though, to ensure that foreign laws aren't being applied in Alaska. CHAIR GATTO offered his belief that it's rare for an individual to enter into a contract with a foreign entity. REPRESENTATIVE HOLMES explained that that's not the case; instead, contracts between individuals and foreign entities are used in a lot of situations, such as those pertaining to employment, travel, the purchase of goods and services, warrantees, and many other, everyday-type situations that most people don't think of as involving a contract. REPRESENTATIVE PRUITT observed that Article. VI. of the U.S. Constitution says in part: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary Notwithstanding. REPRESENTATIVE PRUITT, referring to the aforementioned legal opinion, indicated concern that HB 88 would have unintended consequences, and suggested that the issues raised thus far be researched further to ensure that business and economic opportunities for Alaskans won't be endangered by the bill. REPRESENTATIVE KELLER acknowledged that conflict of laws appears to be a very complicated area of the law, and observed that HB 88 doesn't ban consideration of foreign law, merely the application of foreign law. MS. SAWYER, in response to Representative Thompson, explained that to address the concern expressed in the aforementioned legal opinion, language was added in the House State Affairs Standing Committee providing an exemption for corporations, partnerships, and other forms of business association. In conclusion, she offered her understanding that there is a shari'a court operating in Texas. 2:35:06 PM REPRESENTATIVE KELLER moved to report the proposed committee substitute (CS) for HB 88, Version 27-LS0333\D, Bailey, 3/30/11, out of committee with individual recommendations and the accompanying fiscal notes. CHAIR GATTO said there was an objection to the motion. A roll call vote was taken. Representatives Thompson, Gruenberg, Lynn, Keller, Pruitt, and Gatto voted in favor of reporting the bill from committee. Representative Holmes voted against it. Therefore, CSHB 88(JUD) was reported from the House Judiciary Standing Committee by a vote of 6-1.