Legislature(2011 - 2012)CAPITOL 120

04/01/2011 01:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Moved Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSHB 88(JUD) Out of Committee
                   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                                                               
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                                                               
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                                                               
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.                                                                                  

Document Name Date/Time Subjects
HB1 Sponsor Statement Version M 03-31-11.pdf HJUD 4/1/2011 1:00:00 PM
HB 1
HB1 Explanation of Changes Version A to M 03-31-11.pdf HJUD 4/1/2011 1:00:00 PM
HB 1
HB1 CS (HSS) Version M 03-16-11.pdf HJUD 4/1/2011 1:00:00 PM
HB 1
HB1 Version A 01-18-11.pdf HJUD 4/1/2011 1:00:00 PM
HB 1
HB1 Fiscal Note-DHSS-HCMS 02-24-11.pdf HJUD 4/1/2011 1:00:00 PM
HB 1
HB1 Supporting Documents-Explanation of Application.pdf HJUD 4/1/2011 1:00:00 PM
HB 1
HB1 Supporting Documents-Letter NFIB 02-28-11.pdf HJUD 4/1/2011 1:00:00 PM
HB 1
HB1 Opposing Documents-Letter AARP 02-28-11.pdf HJUD 4/1/2011 1:00:00 PM
HB 1
HB179 Sponsor Statement 03-30-11.pdf HJUD 4/1/2011 1:00:00 PM
HB 179
HB179 Version A 03-09-11.pdf HJUD 4/1/2011 1:00:00 PM
HB 179
HB179 Fiscal Note-DOA-OPA 03-25-11.pdf HJUD 4/1/2011 1:00:00 PM
HB 179
HB179 Fiscal Note-DOA-PDA 03-25-11.pdf HJUD 4/1/2011 1:00:00 PM
HB 179
HB179 Fiscal Note-DOC-OC 03-28-11.pdf HJUD 4/1/2011 1:00:00 PM
HB 179
HB179 Fiscal Note-LAW-CRIM 03-25-11.pdf HJUD 4/1/2011 1:00:00 PM
HB 179
HB179 Supporting Documents 03-17-11.pdf HJUD 4/1/2011 1:00:00 PM
HB 179