Legislature(2011 - 2012)CAPITOL 106

03/24/2011 08:00 AM STATE AFFAIRS

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08:09:25 AM Start
08:09:40 AM HB88
09:00:10 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
<Bill Hearing Canceled>
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSHB 88(STA) Out of Committee
<Bill Hearing Rescheduled from 3/22/11>
                   HB  88-USE OF FOREIGN LAW                                                                                
CHAIR LYNN  announced that the  only order of business  was 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."                                                                                             
8:09:40 AM                                                                                                                    
REPRESENTATIVE  SEATON moved  to adopt  the committee  substitute                                                               
(CS) for HB 88, Version 27-LS033\B, Bailey, 3/23/11.                                                                            
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.                                                                
8:10:57 AM                                                                                                                    
KAREN  SAWYER, Staff,  Representative  Carl  Gatto, Alaska  State                                                               
Legislature, presented  HB 88 on behalf  of Representative Gatto,                                                               
sponsor.  She reviewed that during  the previous hearing on HB 88                                                               
[on 3/17/11],  the committee had expressed  concern regarding how                                                               
the  bill  would  affect corporations,  business  contracts,  and                                                               
tribal law.   Subsequently, she noted, the  bill sponsor received                                                               
a legal  opinion from  the Department of  Law (DOL)  [included in                                                               
the committee  packet], and  used that legal  opinion to  come up                                                               
with  Version B.    The two  changes  to the  bill  are found  in                                                               
Version B, in subsections (f) and  (g), beginning on page 2, line                                                               
23.   She said  although the attorney  general states  that there                                                               
would not be  a problem for tribal laws, "there  was an area that                                                               
said in limited  circumstances, tribal members may  be subject to                                                               
the concurrent  jurisdiction of tribal courts  and state courts."                                                               
She said that was included for clarification on the issue.                                                                      
MS. SAWYER  noted that there  are 17 states that  have introduced                                                               
similar legislation [list included  in the committee packet], and                                                               
many of  them have amended  their legislation with  language that                                                               
states  that "this  section  shall not  apply  to a  corporation,                                                               
partnership, or other form of business association."                                                                            
8:13:23 AM                                                                                                                    
REPRESENTATIVE SEATON  expressed appreciation for  the amendments                                                               
made in Version B.                                                                                                              
REPRESENTATIVE GRUENBERG removed his  objection.  [There being no                                                               
further objection, Version  B was before the committee  as a work                                                               
8:14:22 AM                                                                                                                    
REPRESENTATIVE  SEATON  asked  for  confirmation  that  a  treaty                                                               
signed by the  U.S. would not be considered foreign  law under HB                                                               
MS.  SAWYER answered  that  is  correct.   She  related that  the                                                               
aforementioned legal  opinion states that the  laws that directly                                                               
affect  Alaska   are  federal   statutes  and   regulations  that                                                               
implement  treaties, and  these federal  laws preempt  state law.                                                               
In response  to Representative Gruenberg, she  confirmed that the                                                               
legal opinion is dated March 21, 2011.                                                                                          
8:16:36 AM                                                                                                                    
REPRESENTATIVE JOHANSEN cited a  sentence in the second paragraph                                                               
of the legal opinion, which read as follows:                                                                                    
      Therefore, in limited circumstances, tribal members                                                                       
      may be subject to the concurrent jurisdiction of the                                                                      
     tribal courts and the state courts.                                                                                        
REPRESENTATIVE  JOHANSEN asked  if  there is  a  defined list  of                                                               
those circumstances.                                                                                                            
8:17:46 AM                                                                                                                    
MARY    ELLEN    BEARDSLEY,     Assistant    Attorney    General,                                                               
Commercial/Fair  Business Section,  Civil  Division -  Anchorage,                                                               
Department of Law (DOL), responded that  she does not have a list                                                               
and  does not  deal  with  the tribal  issues  addressed by  DOL;                                                               
however, she said  she could acquire a list of  issues that could                                                               
arise.    She  offered  her understanding  that  there  are  some                                                               
circumstances where there is concurrent  jurisdiction - when both                                                               
tribunals have equal jurisdiction over an issue.                                                                                
REPRESENTATIVE  JOHANSEN  indicated  that he  would  contact  the                                                               
department.    He  then directed  attention  to  Ms.  Beardsley's                                                               
comments in  the [first full]  paragraph on  page 2 of  the legal                                                               
opinion, and asked  her to confirm whether she  means that [using                                                               
foreign law] would be a rare occurrence.                                                                                        
MS. BEARDSLEY affirmed that is correct.                                                                                         
REPRESENTATIVE JOHANSEN  ventured that that which  HB 88 proposes                                                               
to address  may never happen,  but he opined  that it is  fine to                                                               
have the legislation in place just in case.                                                                                     
8:21:10 AM                                                                                                                    
REPRESENTATIVE   GRUENBERG  directed   attention  to   the  first                                                               
paragraph on page  3 of the legal opinion, regarding  a motion to                                                               
move a case to Kenya, and asked if that was an Alaska case.                                                                     
MS. BEARDSLEY responded  yes, and confirmed that  was an [Alaska]                                                               
Superior Court decision.                                                                                                        
REPRESENTATIVE GRUENBERG  said that is  the first example  he has                                                               
heard of  such a motion  in Alaska, and he  said he would  like a                                                               
citing or copy of the judge's opinion.                                                                                          
MS. BEARDSLEY  suggested that Scott  Taylor, the  individual more                                                               
closely   involved  with   that   case,  contact   Representative                                                               
Gruenberg directly.                                                                                                             
CHAIR LYNN requested  that that information be  made available to                                                               
the entire committee.                                                                                                           
8:23:36 AM                                                                                                                    
REPRESENTATIVE GRUENBERG asked Ms. Beardsley  if she thinks HB 88                                                               
would impact contractual rights  entered into in contemplation of                                                               
MS.  BEARDSLEY said  the bill  could have  that impact,  but said                                                               
there would  have to be a  determination by the state  court that                                                               
constitutional rights were being violated.                                                                                      
8:27:10 AM                                                                                                                    
MS. BEARDSLEY, in response  to Representative Petersen, explained                                                               
that the purpose  of the second paragraph on page  2 of the legal                                                               
opinion was  to illustrate  that if a  party willingly  agrees to                                                               
file a  dispute in a foreign  venue, then HB 88  would not apply,                                                               
because foreign law - not Alaska law - would apply.                                                                             
8:29:15 AM                                                                                                                    
REPRESENTATIVE GRUENBERG  asked whether  HB 88  could be  used to                                                               
change venues  from the foreign  country to the U.S.  despite the                                                               
contract and  the fact that  the case  is being litigated  in the                                                               
foreign country.                                                                                                                
8:31:35 AM                                                                                                                    
MS. BEARDSLEY ventured  that the foreign law would  have to apply                                                               
or the courts  would have to determine whether the  choice of law                                                               
provision under that foreign country's law was valid.                                                                           
REPRESENTATIVE GRUENBERG said  he is trying to figure  out if the                                                               
proposed legislation would  result in "a race to  the court house                                                               
between  the two  litigants," which  may further  aggravate these                                                               
types of situations.                                                                                                            
MS.  BEARDSLEY said  she thinks  Representative Gruenberg  may be                                                               
correct that that could be the result.                                                                                          
8:33:11 AM                                                                                                                    
REPRESENTATIVE JOHANSEN  suggested that the  current conversation                                                               
is  delving  into  the  realm of  the  House  Judiciary  Standing                                                               
CHAIR LYNN concurred.                                                                                                           
8:33:50 AM                                                                                                                    
JEFFREY  MITTMAN, Executive  Director,  American Civil  Liberties                                                               
Union  (ACLU)  of  Alaska,  stated  that  there  are  significant                                                               
problems with HB 88, even in  [Version B].  He indicated that the                                                               
attorney general's legal opinion points  to some of the problems.                                                               
He said his  testimony would be in response  to specific requests                                                               
made by Chair Lynn at the previous hearing of HB 88.                                                                            
MR.  MITTMAN   said  that  during   the  previous   hearing,  Mr.                                                               
Yerushalmi  [of the  Center For  Security  Policy in  Washington,                                                               
D.C.]  had  cited  17  cases  across  the  country  in  which  he                                                               
understood  shari'a law  had been  imposed on  American citizens.                                                               
Mr. Mittman said the ACLU of  Alaska reviewed all of those cases,                                                               
and  he listed  some  of  the cases  that  had  been cited  where                                                               
shari'a law was  not imposed:  Amin v. Bakhaty  - a child custody                                                             
case;  People of  the State  of New  York v.  Ibrahim Ben  Benu -                                                             
regarding forced  child marriage; Rhodes  v. ITT Sheraton  Corp -                                                             
regarding  the rejection  of a  foreign country  as an  alternate                                                               
forum for resolving  a dispute; and Saida Banu  Tarikonda v. Bade                                                             
Saheb Pinjari -  regarding an appellate court  overruling a lower                                                             
court's recognition of  shari'a divorce law.   Mr. Mittman opined                                                               
that the  aforementioned cases  show that  the U.S.  Court system                                                               
understands  issues  of  comity,   procedural  due  process,  and                                                               
constitutional rights, and has existing  structures with which to                                                               
address these issues.                                                                                                           
8:38:58 AM                                                                                                                    
MR. MITTMAN  indicated that  [HB 88] would  increase the  cost of                                                               
litigation,  create   uncertainty,  and  cause  harm   to  Alaska                                                               
corporations  and individuals.   In  response to  Chair Lynn,  he                                                               
said Version B may or may  not take care of commercial contracts.                                                               
He explained  that the  problem is there  can be  individuals who                                                               
enter into business, as well.                                                                                                   
8:40:49 AM                                                                                                                    
REPRESENTATIVE GRUENBERG  directed attention to language  on page                                                               
2, lines 23-24, of Version B, which read as follows:                                                                            
       (f) This section does not apply to a corporation,                                                                        
     partnership, or other form of business association.                                                                        
REPRESENTATIVE  GRUENBERG said  he  interprets  that language  to                                                               
mean that this section would apply  to an individual.  He said in                                                               
that  sense,  the  "artificial"   group  would  have  greater  or                                                               
different rights than that of the person.                                                                                       
MR. MITTMAN  said ACLU  of Alaska  would interpret  that language                                                               
the same  way, and  it could  be a potential  problem.   He said,                                                               
"The bill  is beginning to  throw out of balance  existing, well-                                                               
settled areas of the law that  allow courts to draw the difficult                                                               
decisions."   He warned there  would be competing interests.   In                                                               
response  to  a  question  from  Chair Lynn  as  to  whether  the                                                               
interests  of Alaska  and the  U.S. would  be paramount,  he said                                                               
currently there are well settled principles  of law, and HB 88 is                                                               
necessary.  He  indicated that the question to ask  is whether or                                                               
not HB  88 would  do harm,  and he said  the answer  is yes.   He                                                               
explained that the  proposed bill would throw out  of balance the                                                               
existing interpretation,  because courts would have  to decide if                                                               
one side has an advantage over the other.                                                                                       
MR.  MITTMAN further  related that  the proposed  legislation was                                                               
presented to  the legislature  by Mr. Yerushalmi  as a  bill that                                                               
would  cite   international  law,   but  Mr.  Mittman   said  the                                                               
supporting documentation  that was provided to  the committee "is                                                               
very clear  that this is  about ...  shari'a law."   He indicated                                                               
that  HB 88  would  entangle  the State  of  Alaska  in a  highly                                                               
controversial, problematic, and  difficult constitutional area of                                                               
law  regarding  whether  the  proposed  legislation  is  targeted                                                               
against  a  religion.    He   said  based  on  the  documentation                                                               
provided,  the bill  will run  up against  First Amendment  right                                                               
8:46:22 AM                                                                                                                    
CHAIR  LYNN  offered his  understanding  that  shari'a is  not  a                                                               
religion, but is law that stems from a particular religion.                                                                     
MR. MITTMAN proffered,  "Shari'a law could be called  a system of                                                               
law that has  arisen through the Islamic tradition  and a shari'a                                                               
court or  an Islamic law court."   In response to  Chair Lynn, he                                                               
illustrated how Hassidic law could  be called into question under                                                               
HB 88.   He  said when  looking at  HB 88,  courts will  look for                                                               
legislative  intent,  and  he  referred  again  to  the  material                                                               
provided by Mr. Yerushalmi's organization.   In response to Chair                                                               
Lynn, he said  he was referring to the Uniform  American Laws for                                                               
American Courts Act.                                                                                                            
8:48:28 AM                                                                                                                    
REPRESENTATIVE KELLER  emphasized that the bill  sponsor "has not                                                               
indicated any organization behind this  law."  He said the source                                                               
of law  in Alaska  is the  state's publicly  elected legislators,                                                               
who have  the right to  adopt legislation that makes  it unlawful                                                               
to apply  law that comes from  another jurisdiction.  He  said he                                                               
can appreciate  Mr. Mittman's opinion  that HB 88 is  not needed,                                                               
but  said he  is not  convinced that  the bill  would "complicate                                                               
8:49:44 AM                                                                                                                    
MR. MITTMAN  clarified that the  point he  was trying to  make is                                                               
that when the courts look at  whether a bill is constitutional or                                                               
valid, one  of the  things they  consider is  legislative intent,                                                               
and legislative record is considered in legislative intent.                                                                     
8:50:31 AM                                                                                                                    
REPRESENTATIVE  JOHANSEN  offered   his  understanding  that  Mr.                                                               
Mittman had prefaced all his  comments by saying, "You don't have                                                               
to  be   an  attorney   to  understand   this."     He  expressed                                                               
appreciation  for  Mr.  Mittman's  "dumbing  this  down  for  the                                                               
benefit of  the legislature."   He  remarked that  he appreciates                                                               
Mr. Mittman's support  for the fairness of the  court system, and                                                               
he will  look for consistency  in that viewpoint in  future cases                                                               
where  the  court's opinion  may  not  support  that of  ACLU  of                                                               
Alaska.    He  directed  attention to  the  aforementioned  legal                                                               
opinion  and  stated that  the  bottom  line is  that  individual                                                               
circumstances are  reflected off of  the public policy,  which is                                                               
enacted by  the legislature in  the laws of  Alaska.  He  said he                                                               
has a  great deal  of "comfort  with the  legal opinion,"  and he                                                               
echoed the  comments made by  Representative Keller.  He  said he                                                               
thinks "we've exhausted this" and he  would like to move the bill                                                               
out of committee.                                                                                                               
8:52:08 AM                                                                                                                    
REPRESENTATIVE CARL  GATTO, Alaska State Legislature,  as sponsor                                                               
of HB 88, talked about  the numerous jurisdictions throughout the                                                               
world, and said HB 88  is acknowledging that Alaska cannot absorb                                                               
all those jurisdictions into the laws  of the state.  He said the                                                               
intent of HB 88  is to clarify that the laws  of the country will                                                               
be superior to the laws of a foreign country.                                                                                   
8:53:14 AM                                                                                                                    
REPRESENTATIVE  GRUENBERG reiterated  his  concern  that only  an                                                               
individual could invoke  HB 88, but a corporation  would not have                                                               
the right to do so.  He said  that could have the opposite of the                                                               
intended effect of the bill.   He then questioned what the "right                                                               
guaranteed  by the  Constitution of  the State  of Alaska  or the                                                               
United States  Constitution" -  as referred to  on page  2, lines                                                               
18-19 of  Version B -  really means.  He  referred to the  Law of                                                               
the  Sea Treaty  and the  question  of whether  it would  violate                                                               
Alaska's right  to sovereignty.  He  said HB 88 would  "open up a                                                               
whole new panoply of legal  arguments."  He talked about guessing                                                               
at the bill drafter's intent.                                                                                                   
8:55:50 AM                                                                                                                    
REPRESENTATIVE  JOHANSEN  stated  his objection  and  pointed  to                                                               
Representative Gatto as the person who wrote HB 88.                                                                             
8:56:13 AM                                                                                                                    
REPRESENTATIVE GRUENBERG  said the question  is whether HB  88 is                                                               
going  to allow  a  different level  of constitutional  argument,                                                               
which   would   be   that   it   "violates   somebody's   alleged                                                               
constitutional  right  to  apply   any  foreign  law  because  it                                                               
violates  our sovereignty."   He  said he  cannot determine  "how                                                               
good or  bad it would  be in a  given set of  circumstances," but                                                               
said  he wants  consideration given  to this  issue, because  "it                                                               
will come up if this bill passes."                                                                                              
CHAIR LYNN  opined that it would  be more appropriate to  take up                                                               
that issue  in the House  Judiciary Standing Committee,  which is                                                               
the next committee of referral.                                                                                                 
8:57:38 AM                                                                                                                    
REPRESENTATIVE SEATON  said he  appreciates the  sponsor's coming                                                               
forward  with  Version  B  to take  out  the  language  regarding                                                               
corporations,  because that  was problematic.   He  remarked that                                                               
other states  that have passed  [similar legislation]  have "done                                                               
the  same thing."   He  said he  would like  the House  Judiciary                                                               
Standing  Committee  to  consider  whether  there  would  be  any                                                               
restrictions for female Alaskans  in signing contracts in foreign                                                               
8:58:44 AM                                                                                                                    
REPRESENTATIVE  KELLER moved  to  report CS  HB  88, Version  27-                                                               
LS0333\B,  Bailey,  3/23/11,  out of  committee  with  individual                                                               
recommendations and the accompanying fiscal notes.                                                                              
8:59:04 AM                                                                                                                    
REPRESENTATIVE GRUENBERG objected.                                                                                              
8:59:13 AM                                                                                                                    
A roll  call vote was  taken.  Representatives  Keller, Petersen,                                                               
Johansen, P.  Wilson, Seaton, and  Lynn voted in favor  of moving                                                               
CS HB 88, Version 27-LS0333\B,  Bailey, 3/23/11, out of committee                                                               
with  individual  recommendations  and  the  accompanying  fiscal                                                               
notes.   Representative Gruenberg  voted against it.   Therefore,                                                               
CSHB  88(STA)  was  reported  out  of  the  House  State  Affairs                                                               
Standing Committee by a vote of 6-1.                                                                                            

Document Name Date/Time Subjects
- 14 CSHB 88 ( ) work draft 3-23-11 version B.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 15 Explanation of Changes HB88 work draft 3-23-11.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 16 AG legal opinon re HB 88 3-21-11.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 17 HB 88 States move to ban sharia-foreign law in 2011.pdf HSTA 3/24/2011 8:00:00 AM
- 18 Townhall Magazine article re Sharia in America 04-2011.pdf HSTA 3/24/2011 8:00:00 AM
- 19 PHONE CALLS re HB 88 032311.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 20 Support for HB88-Weel.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 21 Support for HB88-Schneibel.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 22 Support for HB88-Phelps.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 23 Support for HB88-McPhee.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 24 Support for HB88-Lopetrone.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 25 Support for HB88-Kilpatrick.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 26 Support for HB88-Kearney.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 27 Support for HB88-Hovenden.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 28 Support for HB88-Hillmer.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 29 Support for HB88-Cushman.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 30 Support for HB88-Cupples.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 31 HB 88 SUPPORT LETTER Grimwood 3-23-11.pdf HSTA 3/24/2011 8:00:00 AM
HB 88
- 32 Opposition for HB88-O'Donnell.pdf HSTA 3/24/2011 8:00:00 AM
HB 88