Legislature(1993 - 1994)
02/08/1993 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 8, 1993
1:00 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice Chair, arrived later
Rep. Gail Phillips, arrived later
Rep. Pete Kott
Rep. Joe Green
Rep. Jim Nordlund
Rep. Cliff Davidson, arrived later
COMMITTEE CALENDAR
Bills requested by the Alaska Court System.
HB 73: "An Act relating to state and local taxation and
other state regulation as affected by the Alaska
Native Claims Settlement Act, as amended, and
related federal statutes; and providing for an
effective date."
PASSED OUT OF COMMITTEE
*HJR 21: Honoring Thurgood Marshall, 1908 - 1993.
PASSED OUT OF COMMITTEE
(* First public hearing.)
WITNESS REGISTER
CHRIS CHRISTENSEN
Staff Counsel
Alaska Court System
303 K Street
Anchorage, Alaska 99501
Phone: 264-8228
Position Statement: Explained proposed committee
legislation
RENA BUKOVICH
Legislative Aide
Rep. Eileen MacLean
State Capitol, Room 507
Juneau, Alaska 99801-1182
Phone: 465-4833
Position Statement: Supported HB 73
JACK CHENOWETH, Attorney
Legal Services Division
Legislative Affairs Agency
Goldstein Building, Room 405
130 Seward Street
Juneau, Alaska 99801
Phone: 465-2450
Position Statement: Answered questions on HB 73
REP. JOHN DAVIES
Alaska State Legislature
Court Building, Room 604
Juneau, Alaska 99801-1182
Phone: 465-4457
Position Statement: Supported HJR 21
PREVIOUS ACTION
BILL: HB 73
SHORT TITLE: ANCSA STATE TAX EXEMPTIONS
BILL VERSION:
SPONSOR(S): REPRESENTATIVE(S) MACLEAN
TITLE: "An Act relating to state and local taxation and
other state regulation as affected by the Alaska Native
Claims Settlement Act, as amended, and relate federal
statutes; and providing for an effective date."
JRN-DATE JRN-PG ACTION
01/18/93 102 (H) READ THE FIRST TIME/REFERRAL(S)
01/18/93 102 (H) CRA, JUDICIARY, FINANCE
01/28/93 (H) CRA AT 01:00 PM CAPITOL 124
01/28/93 (H) MINUTE(CRA)
01/29/93 174 (H) CRA RPT 5DP 2NR
01/29/93 174 (H) DP: SANDERS,BUNDE,WILLIAMS,
TOOHEY,
01/29/93 174 (H) DP: OLBERG NR: DAVIES, WILLIS
01/29/93 174 (H) -ZERO FISCAL NOTE (REV)
1/29/93
02/08/93 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HJR 21
SHORT TITLE: IN MEMORIAM THURGOOD MARSHALL
BILL VERSION:
SPONSOR(S): REPRESENTATIVE(S) DAVIES,Brice,Brown,Carney,
Davidson,B.Davis,Finkelstein,Grussendorf,Hoffman,Mackie,
Menard,Navarre,Nicholia,Nordlund,Sitton,Ulmer,Willis,Martin,
Porter,Toohey,Green,G.Davis,Hudson,James,Sanders
TITLE: Honoring Thurgood Marshall, 1908 - 1993.
JRN-DATE JRN-PG ACTION
01/29/93 176 (H) READ THE FIRST TIME/REFERRAL(S)
01/29/93 176 (H) JUDICIARY
02/01/93 201 (H) COSPONSOR(S): JAMES
02/03/93 223 (H) COSPONSOR(S): SANDERS
02/08/93 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 93-10, SIDE A
Number 000
CHAIRMAN PORTER called the Judiciary Committee meeting to
order at 1:06 p.m. on February 8, 1993. A quorum was
present. Chairman Porter announced that a joint meeting of
the House and Senate Judiciary Committees scheduled for
Wednesday for the purpose of continuing confirmation
hearings on public member appointees to the Select Committee
on Legislative Ethics might be rescheduled for the following
Monday.
REP. GREEN asked if two additional appointees would appear
before the committee.
Number 035
CHAIRMAN PORTER said that at least two appointees would be
interviewed at the meeting. He added that if the House
failed to confirm any of the other appointees, however, more
appointees could come before the committee.
CHAIRMAN PORTER announced that the first agenda item was
three bills that the Alaska Court System wished the
committee to introduce on its behalf. He called upon Chris
Christensen to address the committee.
Number 058
CHRIS CHRISTENSEN, STAFF COUNSEL, ALASKA COURT SYSTEM,
called the members' attention to a memorandum outlining the
three proposed bills. He noted that each of the bills would
get referred to the Judiciary Committee after its
introduction.
MR. CHRISTENSEN described the first bill, which would allow
magistrates to grant post-conviction relief to defendants in
cases where they had the authority to enter the original
conviction. Prior to 1990, he said, only superior court
judges had the authority to grant post-conviction relief. A
1990 law granted the same authority to District Court judges
for cases that had been tried in district court. Through an
oversight in that legislation, the same authority was not
extended to magistrates.
Number 111
MR. CHRISTENSEN explained that the bill would also modify
magistrate jurisdiction with respect to noncriminal
offenses, or those offenses for which a person could get a
fine but no jail sentence, such as a speeding ticket. He
noted that magistrates were currently allowed to hear some
noncriminal offenses, but not others. The bill would
authorize magistrates to hear all noncriminal offenses,
including minor fish and game violations.
Number 140
MR. CHRISTENSEN proceeded to describe the second proposed
bill, which related to payment for legal services. He
explained that the bill would allow the state to immediately
recover defense costs from any person who had received free
legal services from the state. Under current law, he noted,
the state was required to wait until three years after the
defendant's release from custody to initiate proceedings
against a defendant. He added that the state was also
currently prevented from recovering defense costs from a
person who was not convicted. The bill, he said, also made
a technical change regarding the state's authority to
garnishee a defendant's permanent fund dividend check,
whether or not that defendant was sentenced to jail.
Number 189
MR. CHRISTENSEN described the third piece of proposed
legislation, which he said proposed to repeal a section of
the previous year's omnibus crime law. He explained that
the new law allowed a three-judge sentencing panel to reduce
a presumptive sentence if the panel found that it would be
"manifestly unjust" to impose the presumptive sentence. If
the panel found manifest unjustness and found that the
defendant had an extraordinary potential for rehabilitation,
the sentence could not be reduced. However, in that
situation, the panel could make the defendant eligible for
parole in the second half of the sentence. Mr. Christensen
said that the court system found this distinction inherently
unworkable in that it did not allow the court to adequately
consider a defendant's rehabilitative potential.
Number 236
CHAIRMAN PORTER acknowledged the presence of Reps. James,
Phillips and Davidson.
Number 250
REP. GREEN asked Mr. Christensen about the fiscal impact of
the first proposed piece of legislation.
Number 261
MR. CHRISTENSEN mentioned the dramatically increased
caseload of the court system over the past several years,
and budgets not increasing accordingly. The court system
constantly sought ways to live within its budget, he said.
He noted that he was hopeful that this change would help
them to keep within that budget.
Number 272
REP. KOTT asked Mr. Christensen if this bill would result in
the inundation of magistrates with new cases.
Number 286
MR. CHRISTENSEN stated that he did not know the exact number
of new cases that the bill would direct to magistrates. The
court system believed that this bill would better equalize
caseloads. He spoke of the heavy caseload of district
judges and indicated this bill would alleviate their heavy
load. Also, he said, the court system could find no
philosophical reason why magistrates should be allowed to
hear certain noncriminal cases and not others.
Number 321
CHAIRMAN PORTER noted the presence of Rep. John Davies and
invited him to join the committee at the table. Rep. Davies
indicated that he was there to testify on HJR 21 and
therefore declined Chairman Porter's offer.
Number 326
REP. GREEN asked Mr. Christensen about the second proposed
bill. First, he asked about the possibility that a judge
would rule that seizure of a defendant's permanent fund
dividend constituted undue hardship for certain indigent
defendants. Secondly, he asked if seizure of an indigent
defendant's dividend were allowed, would the state end up
supporting that person in some other form?
Number 340
MR. CHRISTENSEN noted that the Alaska Supreme Court had
adopted the present court rule requiring repayment of
defense costs the previous July by a 3-2 vote. The rule
might end up being addressed by the U. S. Supreme Court, he
added. At the time that a defendant received a public
defender, Mr. Christensen said, he or she was notified that
repayment for the legal services was required. Defendants
were ordered to sign over their permanent fund dividend
checks. If they chose not to sign, he noted, the clerk was
authorized to sign the form for the defendant. There was a
question as to the constitutionality of that rule, he
acknowledged.
Number 380
REP. NORDLUND said that he had some questions regarding the
three bills, but would hold them until the bills were
officially before the committee. He noted that the
questions that had been asked were good ones and should be
brought up again when the bills were referred to the
Judiciary Committee. He also expressed appreciation that
Chairman Porter sought consensus on the introduction of
committee bills, and noted that he had no objection to the
introduction of any of the three bills now before the
committee.
Number 395
CHAIRMAN PORTER commented that he had some serious questions
about the third bill, but he would hold those questions
until the bill was officially before the committee. He
asked for a motion to introduce the three bills as committee
bills.
REP. PHILLIPS moved to introduce the three bills as
committee bills.
Seeing no objection, CHAIRMAN PORTER approved the motion.
HB 73: ANCSA STATE TAX EXEMPTIONS
CHAIRMAN PORTER announced that the next item of business was
a hearing on HB 73, relating to ANCSA (Alaska Native Claims
Settlement Act) state tax exemptions. He noted that Rep.
MacLean was not present, but her aide, Rena Bukovich, would
address the committee on HB 73.
Number 414
RENA BUKOVICH, LEGISLATIVE AIDE TO REP. EILEEN MACLEAN,
PRIME SPONSOR OF HB 73, came forward to address the
committee. She noted that Rep. MacLean was chairing a House
Finance Committee meeting and could not attend the Judiciary
Committee meeting. Ms. Bukovich said that HB 73 had been
introduced primarily to bring state law into compliance with
federal law regarding the exemption of ANCSA property from
taxation. She noted that in 1987, federal law was changed
to continue the property tax exemption from federal, state,
or local taxation on ANCSA land until development occurred.
MS. BUKOVICH mentioned that HB 73 reflected those changes in
state law in order to avoid confusion in the application of
the state's tax laws. In the drafting process, she added,
the attorney noticed other sections of state law which
needed to be updated and included those changes in HB 73.
For the most part, she said, those changes were technical in
nature. The bill did not expand or reduce any laws already
mandated by federal government, she added, it merely cleaned
up state law and ensured that obsolete statutes did not lead
to misinterpretation by state assessors and others who
worked with Alaska's tax laws. She noted that the bill had
the support of the Alaska Federation of Natives.
MS. BUKOVICH noted that HB 73 had a zero fiscal note. The
same bill passed the House last year, she said, but died in
the Senate Rules Committee. To her knowledge, there were no
problems or concerns with the bill, as it was primarily a
housekeeping measure.
Number 440
CHAIRMAN PORTER thanked Ms. Bukovich for her testimony.
Number 445
REP. GREEN asked if federal law would allow the state to
help the Native community to improve its land, instead of
giving tax breaks for unimproved land.
Number 459
MS. BUKOVICH said that she could not address federal law
questions, but noted that a representative from the Alaska
Federation of Natives could probably answer Rep. Green's
question.
Number 469
REP. NORDLUND asked Ms. Bukovich what the exact changes in
federal law were that required the introduction of HB 73.
Number 468
MS. BUKOVICH again noted that she could not address
questions of federal law.
Number 473
CHAIRMAN PORTER asked JACK CHENOWETH, AN ATTORNEY FROM THE
LEGISLATIVE AFFAIRS AGENCY, LEGAL SERVICES DIVISION, to
address the committee.
MR. CHENOWETH told the committee that he had drafted both
the bill now before the committee and its predecessor.
Number 476
REP. NORDLUND asked Mr. Chenoweth what changes in federal
law had prompted introduction of HB 73.
Number 480
MR. CHENOWETH noted that there were two principal changes,
in the form of two federal laws passed since the Alaska
Native Claims Settlement Act - the Alaska National Interest
Lands Conservation Act and the 1987 ANCSA Amendments. The
principal change that pertained to HB 73 is that regarding
the handling of the taxable, or improved, property.
Number 500
MR. CHENOWETH added that congress had removed some language
from one section of ANCSA and reworked it in another section
of the law. He stated that HB 73 reflected those changes in
federal law. Another part of ANCSA which was changed dealt
with who could receive property in the event of the death of
a Native, and whether or not the exemption enjoyed by the
original property owner carried over to the new owner. Most
of the rest of HB 73, he noted, was an attempt to clean up
cross references in the Alaska Statutes.
Number 522
MR. CHENOWETH stated that he had tried to clean up the
statutes so that this exercise would not be necessary every
time congress made changes to ANCSA, through the use of the
phrase "as amended" in the bill.
Number 530
REP. PHILLIPS mentioned that this bill had passed the House
unanimously the year before. She added that she was pleased
to see the addition of the "as amended" phrases.
Number 535
MR. CHENOWETH commented that HB 73 should ensure that the
Alaska statutes automatically kept pace with changes in
federal law.
Number 542
CHAIRMAN PORTER asked if the federal laws which pertained to
HB 73 resulted in a change in the general notion that these
lands were not taxable until they were developed.
Number 552
MR. CHENOWETH responded that there had been no material
changes. He reiterated that in drafting the bill, he had
simply updated the statutes to reflect changes in federal
law. He further indicated that some changes were made when
language was deleted from one section of ANCSA and
reinserted into another section, but they were not
significant changes.
Number 568
CHAIRMAN PORTER asked if federal law had altered the
provision by which regional corporation shares were
inherited.
Number 573
MR. CHENOWETH noted that there had been changes in the
handling of shares. That change, he added, was reflected in
HB 73 on page 3, lines 22-26. The federal law was changed
to clarify who was eligible to receive shares.
Number 596
CHAIRMAN PORTER asked if a non-Native could inherit regional
corporation shares.
Number 602
MR. CHENOWETH replied that the holder of ANCSA corporation
shares could make those shares available to an adopted or a
natural non-Native child. He said that the changes in
federal law did not make it possible to sell corporation
shares.
Number 611
CHAIRMAN PORTER asked if any changes made by HB 73 did not
reflect changes that had been made in federal law.
Number 615
MR. CHENOWETH indicated that there was nothing in HB 73
which did not reflect changes in federal law. He commented
that he had worked closely with the Alaska Federation of
Natives in drafting the bill.
Number 621
REP. GREEN said that at first glance, the bill appeared to
be discriminatory in that Natives could have tax relief on
unimproved property, whereas non-Natives holding the same
property would have to pay taxes on it. He asked Mr.
Chenoweth how the federal government had addressed the
discriminatory nature of the law. He also asked about the
state helping to develop this unimproved land, instead of
granting tax relief to Native owners.
Number 641
MR. CHENOWETH responded that Rep. Green's point about
discrimination was well taken. However, he called Rep.
Green's attention to the fact that congress held the
exclusive right to handle relations with Indian tribes.
Because of that exclusive relationship, he said, the state
of Alaska had no choice but to follow suit.
MR. CHENOWETH stated that some efforts had been made in the
past to try to identify existing state programs and how they
could assist rural Alaskans develop lands. He expressed an
opinion that that was the state's principal means of
encouraging development of Native lands.
Number 670
CHAIRMAN PORTER thanked Mr. Chenoweth for addressing
committee members' questions. He asked the committee how it
wished to proceed.
Number 674
REP. GREEN moved to pass HB 73 out of committee.
Hearing no objections, CHAIRMAN PORTER approved the motion
to pass HB 73 out of committee.
HJR 21: IN MEMORIAM THURGOOD MARSHALL
CHAIRMAN PORTER proceeded to the next order of business, HJR
21, honoring United States Supreme Court Justice Thurgood
Marshall. He asked Rep. John Davies to address the
committee.
Number 685
REP. JOHN DAVIES, PRIME SPONSOR OF HJR 21, noted that
approximately half of the members of the House had co-
sponsored HJR 21. He stated that he felt it was appropriate
to note the death of someone as significant as Justice
Marshall. He expressed an opinion that Justice Marshall's
life embodied democracy and liberty. He noted Justice
Marshall's concern for the rights of the poor and
minorities.
Number 709
REP. PHILLIPS said that resolutions often included a
statement of where they would be sent. She asked if Rep.
Davies would like to have the resolution sent to Justice
Marshall's family or to the U. S. Supreme Court.
Number 714
REP. DAVIES indicated that sending the resolution to Justice
Marshall's family and to the Supreme Court might be
appropriate.
Number 718
REP. PHILLIPS called Rep. Davies' attention to page 2, line
10, of the resolution where Justice Marshall is referred to
as an "Associate Justice." She asked Rep. Davies why that
term had been used, in light of the term "Supreme Court
Justice" ascribed to Sandra Day O'Connor.
Number 722
REP. DAVIES said that he did not know why that term had been
used.
Number 729
CHAIRMAN PORTER noted that an associate justice was any
supreme court justice except for the chief justice. He
added that both "Supreme Court Justice" and "Associate
Justice" were correct terms, but one or the other ought to
be used in the resolution.
Number 738
REP. PHILLIPS recommended that a committee substitute for
HJR 21 be drafted, changing the term "Associate Justice" to
"Supreme Court Justice" and directing the resolution to
Justice Marshall's family and to the court.
Number 742
REP. KOTT asked why this was a joint resolution and not a
concurrent resolution.
Number 747
REP. NORDLUND said that any time a resolution was sent
outside of the Alaska state government, a joint resolution
was the appropriate vehicle to use.
REP. DAVIES noted that he had researched the question at the
time he drafted the resolution, but could not remember at
this time why he had used a joint resolution instead of a
concurrent resolution.
Number 759
CHAIRMAN PORTER said that the paperwork requirements for a
joint resolution were still far less than those required for
a bill. He noted his belief that HJR 21 was a very
appropriate resolution. He cited Justice Marshall's role in
the Brown vs. Board of Education case and expressed his
opinion that there would never be another supreme court
justice as dedicated to civil rights as Justice Marshall had
been.
Number 777
REP. KOTT moved to pass HJR 21, as amended, out of
committee.
Number 784
CHAIRMAN PORTER, seeing no objections, approved the motion.
CHAIRMAN PORTER outlined the schedule of Judiciary Committee
meetings for the next week. He mentioned that he had sent
the names of Rep. Davidson, Rep. Kott, and Rep. James to the
Senate Judiciary Committee as delegates to the joint
subcommittee on Sentencing Commission recommendations.
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 1:50 p.m.
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