Legislature(1997 - 1998)

03/17/1997 01:24 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                HOUSE JUDICIARY STANDING COMMITTEE                             
                          March 17, 1997                                       
                             1:24 p.m.                                         
                                                                               
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Con Bunde, Vice Chairman                                       
 Representative Brian Porter                                                   
 Representative Norman Rokeberg                                                
 Representative Eric Croft                                                     
 Representative Ethan Berkowitz                                                
                                                                               
 MEMBERS ABSENT                                                                
                                                                               
 Representative Joe Green, Chairman                                            
 Representative Jeannette James                                                
                                                                               
 COMMITTEE CALENDAR                                                            
                                                                               
 CONFIRMATION HEARINGS ON GOVERNOR'S APPOINTMENTS TO:                          
 Violent Crimes Compensation Board                                             
                                                                               
        Louisianna (Louann) Cutler                                             
                                                                               
      - CONFIRMATION ADVANCED                                                  
                                                                               
        Leslie B. Wheeler                                                      
                                                                               
      - SCHEDULED BUT NOT HEARD                                                
                                                                               
 * HOUSE BILL NO. 115                                                          
 "An Act making corrective amendments to the Alaska Statutes as                
 recommended by the revisor of statutes; and providing for an                  
 effective date."                                                              
                                                                               
      - MOVED CSHB 115(JUD) OUT OF COMMITTEE                                   
                                                                               
 (* First public hearing)                                                      
                                                                               
 PREVIOUS ACTION                                                               
                                                                               
 BILL: HB 115                                                                  
 SHORT TITLE: 1997 REVISOR'S BILL                                              
 SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE COUNCIL                           
                                                                               
 JRN-DATE      JRN-PG               ACTION                                     
 02/05/97       242    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 02/05/97       242    (H)   JUDICIARY                                         
 02/05/97       243    (H)   SECTIONAL ANALYSIS/H SUPP #4                      
 03/10/97              (H)   JUD AT 1:00 PM CAPITOL 120                        
 03/10/97              (H)   MINUTE(JUD)                                       
 03/14/97              (H)   JUD AT 1:00 PM CAPITOL 120                        
 03/14/97              (H)   MINUTE(JUD)                                       
 03/17/97              (H)   JUD AT 1:00 PM CAPITOL 120                        
                                                                               
 WITNESS REGISTER                                                              
                                                                               
 LOUISIANNA (LOUANN) CUTLER, Attorney at Law                                   
 Preston Gates and Ellis                                                       
 420 L Street, Suite 400                                                       
 Anchorage, Alaska 99501-1937                                                  
 Telephone:  (907) 276-1969                                                    
 POSITION STATEMENT:  Testified as appointee to Violent Crimes                 
                      Compensation Board.                                      
                                                                               
 PAMELA FINLEY, Revisor of Statutes                                            
 Legislative Legal and Research Services                                       
 Legislative Affairs Agency                                                    
 130 Seward Street, Suite 409                                                  
 Juneau, Alaska 99801                                                          
 Telephone:  (907) 465-2029                                                    
 POSITION STATEMENT:  Provided comments on HB 115.                             
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 97-41, SIDE A                                                            
 Number 0001                                                                   
                                                                               
 VICE CHAIRMAN CON BUNDE called the House Judiciary Standing                   
 Committee to order at 1:24 p.m.  Members present at the call to               
 order were Representatives Bunde, Rokeberg, Croft and Berkowitz;              
 Representative Porter arrived shortly thereafter.  Chairman Green             
 and Representative James were excused.                                        
                                                                               
 CONFIRMATION HEARINGS ON GOVERNOR'S APPOINTMENTS TO:                          
 Violent Crimes Compensation Board                                             
                                                                               
 VICE CHAIRMAN BUNDE advised members they would first consider the             
 Governor's appointments of Louisianna (Louann) Cutler and Leslie B.           
 Wheeler to the Violent Crimes Compensation Board.  Those appointees           
 would provide comments via teleconference.                                    
                                                                               
 Number 0095                                                                   
                                                                               
 LOUISIANNA (LOUANN) CUTLER, Attorney at Law, Preston Gates and                
 Ellis, testified via teleconference, saying her resume would                  
 provide some idea of her background.  She believed she had been               
 asked by Governor Knowles to serve mostly because of her experience           
 with the Abused Women's Aid in Crisis (AWAIC), the domestic                   
 violence agency in Anchorage for which she had been vice president            
 of the board for approximately five years.                                    
                                                                               
 MS. CUTLER said she has always been interested in public service              
 and would be happy to answer the Governor's call and serve on the             
 board.  She had attended one meeting, providing her only direct               
 familiarity with the board's procedures.  However, she believed she           
 would be able to handle the position and would enjoy doing so, as             
 it is a real, direct way to help victims of violent crimes.                   
                                                                               
 MS. CUTLER explained that the statute is pretty clear about who is            
 entitled to compensation and who is not.  Basically, it is a                  
 question of sifting through claims to make sure that the type of              
 victim and type of requested reimbursement are covered under the              
 statute.  She offered to answer questions.                                    
                                                                               
 VICE CHAIRMAN BUNDE noted that Representative Porter had joined the           
 meeting.  Speaking on behalf of the committee, he commended Ms.               
 Cutler for her willingness to serve and volunteer time to help make           
 the process work more smoothly.  He asked whether members had                 
 questions.  There being none, he explained that Ms. Cutler's                  
 confirmation would be advanced to the full body, which did not                
 indicate the intention of any member to vote for or against her               
 confirmation at that time.                                                    
                                                                               
 VICE CHAIRMAN BUNDE asked whether Leslie B. Wheeler was available             
 via teleconference.                                                           
                                                                               
 Number 0427                                                                   
                                                                               
 REPRESENTATIVE ERIC CROFT asked whether these were for two separate           
 vacancies.                                                                    
                                                                               
 VICE CHAIR BUNDE affirmed that.                                               
                                                                               
 REPRESENTATIVE CROFT declared a possible conflict of interest                 
 because of working with Ms. Cutler at the law firm of Preston Gates           
 and Ellis as a summer associate some years ago.  It did not involve           
 a financial relationship but a personal one.                                  
                                                                               
 VICE CHAIRMAN BUNDE noted Representative Croft's declaration and              
 said he would be asked to vote.                                               
                                                                               
 The teleconference operator advised Vice Chairman Bunde that Ms.              
 Wheeler was not available to testify via teleconference.                      
                                                                               
 REPRESENTATIVE BRIAN PORTER suggested they attempt to reach Ms.               
 Wheeler at her home number.                                                   
                                                                               
 VICE CHAIRMAN BUNDE called a brief at-ease at 1:28 p.m. while                 
 attempting to contact Ms. Wheeler.  The meeting reconvened at 1:30            
 p.m.  Ms. Wheeler was unavailable.                                            
                                                                               
 HB 115 - 1997 REVISOR'S BILL                                                  
                                                                               
                                                                               
 Number 0590                                                                   
                                                                               
 VICE CHAIRMAN BUNDE advised members they would next consider House            
 Bill No. 115, "An Act making corrective amendments to the Alaska              
 Statutes as recommended by the revisor of statutes; and providing             
 for an effective date."                                                       
                                                                               
 PAMELA FINLEY, Revisor of Statutes, Legislative Legal and Research            
 Services, Legislative Affairs Agency, explained that HB 115 is a              
 technical clean-up bill prepared every year and required by                   
 statute.                                                                      
                                                                               
 MS. FINLEY directed members' attention to Section 8, the most                 
 substantive portion of the bill.  Prior to 1992, claims against the           
 state had to be brought in superior court.  The legislature changed           
 that so that claims could be brought in district court as well, if            
 they were within the district court's jurisdictional limit.  Ms.              
 Finley advised members that she had been told by the Attorney                 
 General's Office that some people had been arguing that because               
 "superior court" had been deleted, the state had waived its                   
 Eleventh Amendment immunity; she assured members that was not the             
 intention of the drafting.  She reported that there was no                    
 indication to her, in any of the hearings, that that was the                  
 intention of the legislature.  Therefore, she had corrected that.             
                                                                               
 MS. FINLEY said other revisions were technical clean-up matters,              
 including two sections relating to the welfare laws passed the                
 previous session.  She reported that she had provided a sectional             
 analysis and three proposed amendments.                                       
                                                                               
 Number 0726                                                                   
                                                                               
 REPRESENTATIVE PORTER requested further clarification of Section 8.           
                                                                               
 MS. FINLEY explained that prior to 1992, it said, "in the superior            
 court", clearly a state court.  That language was deleted in order            
 to give the state district courts jurisdiction over claims against            
 the state that would involve smaller amounts, so that those would             
 not have to be heard in superior court.                                       
                                                                               
 MS. FINLEY said according to personnel from the Office of the                 
 Attorney General, it had been suggested that by deleting the                  
 language, "the superior court", the legislature may have intended             
 to allow itself to be sued in federal court.  Ms. Finley stated,              
 "And that was not the intention.  Or, it was the title of the bill            
 was actually relating to the jurisdiction of the district court.              
 And usually if we'd meant federal district court, we would have               
 said so.  But nevertheless, it's much clearer this way."                      
                                                                               
 REPRESENTATIVE PORTER noted that it goes on to say, "no one can sue           
 us in a state court for anything, except as set out in [AS]                   
 44.77.040(c)."  He asked about that provision.                                
                                                                               
 MS. FINLEY said for a person who may present a claim under AS                 
 44.77, she believed that is a special section relating to contract            
 claims.  She added, "But people are still allowed to sue.  For                
 instance, if there's an auto accident with a state vehicle, you can           
 sue."                                                                         
                                                                               
 Number 0830                                                                   
                                                                               
 REPRESENTATIVE NORMAN ROKEBERG referred to page 13, lines 4 and 5,            
 and asked why those changes were made, breaking it into                       
 subsections.                                                                  
                                                                               
 MS. FINLEY explained that this section is amended fairly                      
 frequently.  When the semi-colon was included, it went on and on,             
 being essentially one long sentence.  The first sentence, which               
 defines program receipts, became subsection (a), with subsection              
 (b) being a definition of program receipts that are not general               
 fund program receipts.  She said it was now easier to read and                
 would ultimately be easier to amend.  There should be no                      
 substantive effect.                                                           
                                                                               
 REPRESENTATIVE PORTER asked for confirmation that except for                  
 Section 8, there were no substantive changes or additions.                    
                                                                               
 MS. FINLEY replied, "Not that makes any policy choices.  I mean, I            
 always hesitate to say there's no substantive change, because I               
 wouldn't bother if there weren't some change.  But no, nothing in             
 terms of making a decision that the legislature hasn't already                
 [made].  We're just conforming numbers, subsections and things like           
 that."                                                                        
                                                                               
 REPRESENTATIVE ROKEBERG asked whether the reference to the division           
 of state libraries, archives and museums was the new name of that             
 division.                                                                     
                                                                               
 MS. FINLEY replied that unfortunately, that division does not exist           
 in statute.  However, if it was going to be referred to, she wanted           
 to give it the correct, current name.  It was formerly known as the           
 division of libraries.                                                        
                                                                               
 Number 1003                                                                   
                                                                               
 REPRESENTATIVE ROKEBERG pointed out that he authored a bill two               
 years ago having to do with a controversial decision by the Revisor           
 of Statutes in 1978, relating to gender-proofing.  It involved                
 something that was apparently to be nonsubstantive but which was              
 ultimately substantive.  He asked whether there was anything in HB
 115 like that.                                                                
                                                                               
 MS. FINLEY said to the best of her knowledge, and her full intent,            
 there was nothing like that in HB 115.                                        
                                                                               
 Number 1110                                                                   
                                                                               
 REPRESENTATIVE CROFT made a motion to adopt Amendment 1, 0-                   
 LS0231\B.1, Finley, 2/21/97, which read:                                      
                                                                               
      Page 1, lines 8 - 9:                                                     
           Delete "post office"                                                
           Insert "mailing [POST OFFICE]"                                      
                                                                               
 VICE CHAIRMAN objected for the purpose of discussion and asked that           
 Ms. Finley explain it.                                                        
                                                                               
 MS. FINLEY advised members that it amends Section 1.  Currently,              
 there is a reference to "post office" address, and the Office of              
 the Attorney General recommended substitution of "mailing" address,           
 as it is a broader term.  Sometimes in the bush, for example, there           
 may not be a post office address.                                             
                                                                               
 VICE CHAIRMAN BUNDE removed his objection and asked whether there             
 were further questions or objections.  There being none, Amendment            
 1 was adopted.                                                                
                                                                               
 REPRESENTATIVE ETHAN BERKOWITZ made a motion to adopt Amendment 2,            
 0-LS0231\B.2, Finley, 2/21/97, which read:                                    
                                                                               
      Page 5, following line 22:                                               
           Insert a new bill section to read:                                  
           "* Sec. 10.  AS 13.12.603(a) is amended to read:                    
                (a)  If a devisee fails to survive the testator and            
      is a grandparent, a descendant of a grandparent, or a                    
      stepchild of either the testator or the donor of a power of              
      appointment exercised by the testator's will, the following              
      apply:                                                                   
                    (1) except as provided in (4) of this                      
      subsection, if the devise is not in the form of a class gift             
      and the deceased devisee leaves surviving descendants, a                 
      substitute gift is created in the devisee's surviving                    
      descendants; the surviving descendants take by representation            
      the property to which the devisee would have been entitled had           
      the devisee survived the testator;                                       
                    (2) except as provided in (4) of this                      
      subsection, if the devise is in the form of a class gift,                
      other than a devise to "issue," "descendants," "heirs of the             
      body," "heirs," "next of kin," "relatives," or "family," or a            
      class described by language of similar import, a substitute              
      gift is created in the surviving descendants of a deceased               
      devisee; the property to which the devisees would have been              
      entitled had all of them survived the testator passes to the             
      surviving devisees and the surviving descendants of the                  
      deceased devisees; each surviving devisee takes the share to             
      which the surviving devisee would have been entitled had the             
      deceased devisees survived the testator; each deceased                   
      devisee's surviving descendants who are substituted for the              
      deceased devisee take by representation the share to which the           
      deceased devisee would have been entitled had the deceased               
      devisee survived the testator; in this paragraph, "deceased              
      devisee" means a class member who failed to survive the                  
      testator and left one or more surviving descendants;                     
                    (3) for the purposes of AS 13.12.601, words of             
      survivorship, as in a devise to an individual "if the                    
      individual survives me," or in a devise to "my surviving                 
      children," are not, in the absence of additional evidence, a             
      sufficient indication of an intent contrary to the application           
      of this section;                                                         
                    (4) if the will creates an alternative devise              
      with respect to a devise for which a substitute gift is                  
      created by (1) or (2) of this subsection, the substitute gift            
      is superseded by the alternative devise only if an expressly             
      designated devisee of the alternative devise is entitled to              
      take under the will;                                                     
                    (5) unless the language creating a power of                
      appointment expressly excludes the substitution of the                   
      descendants of an appointee for the appointee, a surviving               
      descendant of a deceased appointee of a power of appointment             
      can be substituted for the appointee under this section,                 
      whether or not the descendant is an object of the power."                
                                                                               
      Renumber the following bill sections accordingly.                        
                                                                               
      Page 17, line 30:                                                        
           Delete "10 and 11"                                                  
           Insert "11 and 12"                                                  
                                                                               
      Page 18, line 1:                                                         
           Delete "13"                                                         
           Insert "14"                                                         
                                                                               
 VICE CHAIRMAN BUNDE asked that Ms. Finley explain Amendment 2.                
                                                                               
 MS. FINLEY said it amends part of the probate code.  Arthur                   
 Peterson, one of the uniform law commissioners, had brought to her            
 attention that when that section passed, the word "not" had been              
 omitted, possibly through a proofing error.  The language had been            
 taken from the uniform probate code, which contains that "not."               
 Therefore, Amendment 2 is to make the language fit with the uniform           
 probate code.                                                                 
                                                                               
 REPRESENTATIVE BERKOWITZ asked whether this language had ever been            
 used.                                                                         
                                                                               
 MS. FINLEY advised members that it took effect January 1, 1997.               
 She believed the inconsistency was brought to Mr. Peterson's                  
 attention by an attorney who is currently having to cope with it.             
                                                                               
 REPRESENTATIVE BERKOWITZ asked whether it would be appropriate to             
 offer a friendly amendment to Amendment 2, making it retroactive to           
 January 1, 1997.                                                              
                                                                               
 VICE CHAIRMAN BUNDE did not know whether that could be done.  He              
 asked the opinion of Lisa Kirsch, committee aide for the House                
 Judiciary Standing Committee, but she did not know, either.                   
                                                                               
 Number 1254                                                                   
                                                                               
 REPRESENTATIVE ROKEBERG pointed out that there was a retroactive              
 effective date on line 18 in Section 41 of the bill.                          
                                                                               
 MS. FINLEY said to the extent they were affecting a vested right,             
 the retroactivity would have no effect.  She suggested saying, "to            
 the extent constitutionally permissible, it's retroactive."                   
                                                                               
 MS. FINLEY explained, "I've always felt nervous about retroactive             
 provisions.  As a matter of fact, Amendment 3 takes one of them out           
 because it is such a technical bill and also because I know that              
 there's at least one member of the Senate who always feels nervous            
 about any retroactivity in a revisor's bill.  I certainly                     
 understand the reason for wanting to make this retroactive, because           
 it was a typographical error.  And I'm not sure that the court                
 could make sense of it without the `not' in there, to be honest               
 with you."                                                                    
                                                                               
 REPRESENTATIVE BERKOWITZ suggested members provide an effective               
 date of least the current date, March 17, 1997.                               
                                                                               
 VICE CHAIRMAN BUNDE pointed out that it would still involve                   
 retroactivity because it would not become effective until signed by           
 the Governor.                                                                 
                                                                               
 REPRESENTATIVE CROFT asked the reasons for making the other                   
 sections retroactive.  He noted that Section 40 makes two sections            
 retroactive, to July 1, 1995, and to August 16, 1996.                         
                                                                               
 MS. FINLEY explained that the two bill sections being made                    
 retroactive were technical amendments.  The definition of "basic              
 need" in the foundation funding formula was changed from a                    
 subsection (b) to (c); however, the wording was not changed.  These           
 conforming amendments, which cross-reference that definition,                 
 should have been made in that bill.                                           
                                                                               
 MS. FINLEY said in that bill, which passed in 1996, the reversal of           
 (b) and (c) was itself made retroactive to January 1, 1995.  Since            
 that bill contained a retroactive section, she had felt she ought             
 to raise the issue before the committee as to whether they wanted             
 these conforming amendments to also be retroactive.  She stated,              
 "In that particular case, I don't think it matters at all one way             
 or the other, really, because the meaning is the same.  The actual            
 definition of `basic need' has not changed."                                  
                                                                               
 Number 1428                                                                   
                                                                               
 VICE CHAIRMAN BUNDE suggested that because the bill would be                  
 considered in the Senate, he would accept the friendly amendment,             
 if it was the wish of the committee; if there was a problem                   
 meanwhile, he asked that Ms. Finley address it on the Senate side.            
                                                                               
 Number 1444                                                                   
                                                                               
 REPRESENTATIVE ROKEBERG asked Ms. Finley whether, in her review of            
 the record, she could unequivocally tell the committee that the               
 omission was a typographical error.  He asked whether there had               
 been any testimony on the record regarding that language.                     
                                                                               
 MS. FINLEY responded that she had not looked at any committee                 
 hearings to see whether someone had brought it up; however, she had           
 reviewed the bill draft, which said, "take the uniform probate code           
 and put it in here"; that code contained the word "not."  She                 
 emphasized that from the very first time the bill became public, to           
 her belief, the "not" was omitted.  "It was not that someone took             
 it out," she added.                                                           
                                                                               
 VICE CHAIRMAN BUNDE noted that before them was Amendment 2, as                
 amended to state that it is retroactive to January 1, 1997.  He               
 asked if there was any objection.  There being none, Amendment 2,             
 as amended, was adopted.                                                      
                                                                               
 REPRESENTATIVE CROFT made a motion to adopt Amendment 3, 0-                   
 LS0231\B.3, Finley, 2/24/97, which read:                                      
                                                                               
      Page 17, line 30, through page 18, line 2:                               
           Delete all material.                                                
                                                                               
      Renumber the following bill section accordingly.                         
                                                                               
 MS. FINLEY explained that Amendment 3 would delete the                        
 retroactivity section for the definition of "basic need."  She said           
 she did not feel strongly about it one way or the other.  She                 
 explained, "I made it retroactive in the bill because the original            
 amendment that it's conforming other things to was, itself, made              
 retroactive."                                                                 
                                                                               
 MS. FINLEY stated that the reason there were two dates was that the           
 1996 bill made the switch in the subsections retroactive to 1995;             
 therefore, she made one of those changes retroactive to 1995 also.            
 She said, "The other change was a bill section that was enacted in            
 1996 and wasn't effective until August of 1996; so, there's no way            
 to ... retroactively change something that did not exist.  So, I              
 only went back to August of 1996."  Ms. Finley restated that she              
 had no preference about this, although it was probably a little               
 cleaner to be retroactive; and since there was another retroactive            
 section already, it probably would do no harm to leave this one in.           
                                                                               
 REPRESENTATIVE CROFT spoke against Amendment 3, saying the more               
 they could make these "seamless," the better.  "And these do make             
 it seamless as it exists, and I'd prefer that to having gaps in the           
 law," he said.                                                                
                                                                               
 VICE CHAIRMAN BUNDE noted the objection and requested a roll call             
 vote:  In favor was Representative Rokeberg.  Opposed were                    
 Representatives Porter, Croft, Berkowitz and Vice Chairman Bunde.             
 Representative James and Chairman Green were absent.  Therefore,              
 Amendment 3 failed, 4 to 1.                                                   
                                                                               
 REPRESENTATIVE PORTER made a motion to move HB 115, as amended, out           
 of committee with individual recommendations and the attached zero            
 fiscal note.  There being no objection, CSHB 115(JUD) moved out of            
 the House Judiciary Standing Committee.                                       
                                                                               
 ADJOURNMENT                                                                   
                                                                               
 Number 1621                                                                   
                                                                               
 VICE CHAIRMAN BUNDE adjourned the House Judiciary Standing                    
 Committee meeting at 1:50 p.m.                                                
                                                                               
                                                                               

Document Name Date/Time Subjects