Legislature(1993 - 1994)
02/28/1994 01:15 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE February 28, 1994 1:15 p.m. MEMBERS PRESENT Rep. Brian Porter, Chairman Rep. Jeannette James, Vice-Chair Rep. Gail Phillips Rep. Pete Kott Rep. Joe Green MEMBERS ABSENT Rep. Jim Nordlund Rep. Cliff Davidson COMMITTEE CALENDAR HB 316: "An Act adopting the Uniform Statutory Rule Against Perpetuities; and providing for an effective date." MOVED OUT OF COMMITTEE *HB 334: "An Act relating to criminal sentencing; and relating to mandatory life imprisonment, parole, good time credit, pardon, commutation of sentence, reprieve, furlough, and service of sentence at a correctional restitution center for offenders with at least three serious felony convictions." HEARD AND HELD IN COMMITTEE Confirmation of Ethel Staton to the Board of Governor's of the Alaska Bar. Confirmation of Laurie Dahms to the Violent Crimes Compensation Board. Confirmation of Janice Leinhart to the Judicial Council. Confirmation of Robert Congdon to the Violent Crimes Compensation Board. Confirmation of Jeffrey Feldman to the Commission on Judicial Conduct. HB 162: "An Act authorizing capital punishment, classifying murder in the first degree as a capital felony, and establishing sentencing procedures for capital felonies; authorizing an advisory vote on instituting capital punishment; and providing for an effective date." SSHB 162 MOVED OUT OF COMMITTEE (* First public hearing.) WITNESS REGISTER TIM BENINTENDI Legislative Assistant Rep. Carl Moses Alaska State Legislature State Capitol Juneau, AK 99801-1182 465-3764 Position Statement: Testified on HB 316 on behalf of prime sponsor ART PETERSON National Conference of Commissioners for Uniform state Laws 350 N. Franklin St. Juneau, AK 99801 586-4000 Position Statement: Testified on HB 316 REP. CON BUNDE Alaska State Legislature State Capitol Juneau, AK 99801-1182 465-4843 Position Statement: Prime Sponsor of HB 334 DANIELLA LOPER Committee Aide House Judiciary Committee Alaska State Legislature State Capitol Juneau, AK 99801-1182 Position Statement: Asked question on HB 334 DEAN GUANELI Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, AK 99801-0300 465-4049 Position Statement: Testified on HB 334 JUDGE JIM HANSEN Superior Court 303 K Street Anchorage, AK 99501 264-0440 Position Statement: Testified on HB 334 ED McNALLY District Attorney 310 K Street Anchorage, AK 99501-1975 269-6300 Position Statement: Testified on HB 334 JANICE LIENHART Victim's for Justice 619 E. 5th Avenue Anchorage, AK 99501 278-0977 Position Statement: Testified on HB 334 ETHEL STATON P.O. Box 829 Sitka, AK 99835 747-8136 Position Statement: Testified via teleconference LAURIE DAHMS 425 Dahlia, Suite L Palmer, AK 99645 745-1777 Position Statement: Testified via teleconference JANICE LEINHART 619 East Fifth Ave. Anchorage, AK 99501 Position Statement: Testified via teleconference ROBERT COGDON 7300 South Park Drive Anchorage, AK 99516 Position Statement: Testified via offnet JEFFREY FELDMAN 500 L Street, Suite 400 Anchorage, AK 99501 Position Statement: Testified via offnet PREVIOUS ACTION BILL: HB 316 SHORT TITLE: RULE AGAINST PERPETUITIES SPONSOR(S): REPRESENTATIVE(S) MOSES JRN-DATE JRN-PG ACTION 01/03/94 2009 (H) PREFILE RELEASED 01/10/94 2009 (H) READ THE FIRST TIME/REFERRAL(S) 01/10/94 2010 (H) JUDICIARY 02/14/94 (H) JUD AT 01:15 PM CAPITOL 120 02/28/94 (H) JUD AT 01:15 PM CAPITOL 120 BILL: HB 334 SHORT TITLE: SENTENCING;3RD SERIOUS FELONY OFFENDER SPONSOR(S): REPRESENTATIVE(S) BUNDE,Olberg,Porter JRN-DATE JRN-PG ACTION 01/03/94 2014 (H) PREFILE RELEASED 01/10/94 2014 (H) READ THE FIRST TIME/REFERRAL(S) 01/10/94 2015 (H) JUDICIARY, FINANCE 02/28/94 (H) JUD AT 01:15 PM CAPITOL 120 BILL: HB 162 SHORT TITLE: CAPITAL PUNISHMENT FOR MURDER BILL VERSION: SSHB 162 SPONSOR(S): REPRESENTATIVE(S) SANDERS,Olberg,Bunde,Kott, Vezey,James JRN-DATE JRN-PG ACTION 02/18/93 380 (H) READ THE FIRST TIME/REFERRAL(S) 02/18/93 380 (H) JUDICIARY, FINANCE 02/22/93 421 (H) COSPONSOR(S): BUNDE 02/24/93 445 (H) COSPONSOR(S): KOTT 03/01/93 495 (H) COSPONSOR(S): VEZEY 03/02/93 510 (H) COSPONSOR(S): JAMES 11/16/93 (H) MINUTE(JUD) 11/16/93 (S) MINUTE(JUD) 01/19/94 2109 (H) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS 01/26/94 (H) JUD AT 01:15 PM CAPITOL 120 01/26/94 (H) MINUTE(JUD) 01/28/94 (H) JUD AT 01:15 PM CAPITOL 120 01/28/94 (H) MINUTE(JUD) 01/31/94 (H) MINUTE(JUD) ACTION NARRATIVE TAPE 94-29, SIDE A Number 000 The House Judiciary Standing Committee was called to order at 1:25 p.m. on Monday, February 28, 1994. A quorum was present. Chairman Porter announced that the committee would be hearing HB 316, HB 334, and HB 162. HB 316 - RULE AGAINST PERPETUITIES Number 030 TIM BENINTENDI, Legislative Aide to Rep. Carl Moses, Prime Sponsor of HB 316, said the desirability of enacting HB 316 centers on two main criteria. One is to simply administer the estate in trust and the other is to reduce perpetuity litigation. He indicated that uniformity of the rule among the states is attractive because the mobility of American society has generated a range of legal complexities in this area. He indicated that passage of HB 316 would add Alaska to 20 other states which have adopted the uniform language contained in HB 316. Number 077 REP. PHILLIPS asked for a simple explanation of the contents of HB 316. Number 083 MR. BENINTENDI responded that HB 316 basically upgrades the body of law currently in Alaska dealing with the rule against perpetuities. He indicated the principal common law rule is very short, but it's implications throughout the statute dealing with the rule are very complex and HB 316 simply adopts the National Conference of Commissioners on Uniform State Laws' upgraded language. Number 134 CHAIRMAN PORTER asked if there was a lay version of the rule against perpetuities. Number 157 ART PETERSON, Attorney, appearing as a Uniform Law Commissioner for the State of Alaska, testified in support of HB 316. He indicated the lay version of the rule was contained in the legislation itself. He remarked that the rule against perpetuities involves future interests; i.e., if you were to deed something to your son for life, and to your son's children when your son dies, they have a future interest and your present deed conveys a present interest. Then, once you have conveyed that interest, the future interest of those grandchildren is vested. They then have a right to that deed and it can't be taken away from them. They have that vested future interest. The policy of common law that gave rise to this difficult rule against perpetuities was that we don't want property held in perpetuity. Generally, we want that perpetuity rapped up; i.e., life plus 21 years. He indicated that on lines 8 and 9 on page 1, nonvested property interest is invalid unless, when the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive. He indicated further that on lines 10 and 11, you don't invalidate just for the mere possibility that a future child is born to someone that would invalidate the whole thing. Number 319 CHAIRMAN PORTER asked if in his will his property were to go to his son, and his son decides that that property, which he doesn't have yet, were to go to his son, is that his power of appointment or does he actually have to have it first? Number 340 MR. PETERSON responded that he actually has to have it first. Number 353 CHAIRMAN PORTER then asked, if he bequeathed his property to his son and his son makes out a will that says he bequeathed it to his son, why is that somehow different than him having given the property to his son. Number 356 MR. PETERSON responded that if you are still alive when your son dies, you have the option of deciding or changing your mind and selling the property, or willing it to your second son. Number 360 CHAIRMAN PORTER asked for an example of a nonvested interest. Number 362 MR. PETERSON responded that one example is where there is a power of appointment. Another would be if there is an age contingency. Another example would be if you had a provision where your son wouldn't get the property until he got married. Number 428 REP. GREEN asked whether, if he granted you something, when "I pass on, you have the power of authority because its yours?" Number 430 MR. PETERSON responded that that was correct "if it was mine. But because of the kinds of things we are talking about here, I only have a life interest, a right to get the income from this property, for example, during my life." Number 435 REP. GREEN asked whether you couldn't divorce yourself from the thing until you die. MR. PETERSON responded that yes, if you granted a life estate, "then it's mine. But if you give it from Green to Peterson for Peterson's life, then to whomever Peterson designates, that's different. Then you've created that sort of future interest that the rule of perpetuities is going to regulate." Number 458 REP. GREEN asked how he gives the property in fee simple to you with a life estate and then it goes to somebody you designate. Number 461 MR. PETERSON responded that "what you've given me is not fee simple. You've only given me a life estate. That person down the line gets the fee simple." Number 463 REP. GREEN said that "without designating I can divest myself of everything with only partial to you and then you, in turn, can obtain full title through this designation; i.e., not having control of it, are you giving away more than you have?" Number 471 MR. PETERSON responded that "you are giving away more than I have. All I'm doing is appointing the ultimate recipient, but it's your control that actually starts this process." Number 531 DANIELLA LOPER, House Judiciary Committee Aide, asked where the common law rule against perpetuities limit all trusts to a 90 year period. Number 539 MR. PETERSON responded that the use of a flat period of 90 years simplifies the process of measuring the permissible vesting period for the wait and see element. The alternative would be to measure the period on a case by case basis, called the "measuring lies approach." The 90 year period is designed to approximate the average margin of safety period provided under the wait and see method using actual measuring lives or by traditional perpetuities savings clauses. Number 586 CHAIRMAN PORTER asked whether there were any further questions regarding the rule of perpetuities. Number 594 REP. GREEN moved that HB 316 be moved from the Judiciary Committee with individual recommendations. Number 596 CHAIRMAN PORTER asked for further discussion and any objections. Hearing none, he declared HB 316 moved out of committee. HB 334 - SENTENCING; 3RD SERIOUS FELONY OFFENDER Number 619 REP. CON BUNDE, Prime Sponsor of HB 334, testified that the intent of this legislation is to deal with the violent predator in our society. He further stated that this legislation would not affect a great deal of people, perhaps six per year. Rep. Bunde indicated that there was a CS for HB 334 and asked the committee if they could address the CS. Number 635 REP. GREEN moved that the committee adopt the CS for HB 334 as the document of record. Number 636 CHAIRMAN PORTER moved the CS as being before the committee. Number 639 REP. BUNDE indicated that the CS addresses several of the problems raised by the Department of Law; i.e., prosecutorial discretion, constitutional questions, and some problems that have been addressed in other states. The point he wanted to make was that the intent of the bill was not to make someone who gets into trouble with the IRS, defaces something in the post office, etc., it is not the intent to put them in jail for life. What he is talking about here is violent offenders who are what we call predators and repeat offenders who are causing a large portion of the crime and endangering society. Number 674 DEAN GUANELI, Assistant Attorney General, Criminal Division, Department of Law, testified that the committee substitute requires a 99 year mandatory sentence for someone who is convicted of a Class A or Unclassified felony, and who has been previously convicted of similar offenses at least twice. He further testified that this bill gives prosecutors some prosecutorial discretion in deciding whether to proceed with this mandatory sentencing provision or not and he feels that consideration is very important in order to eliminate, perhaps, some unjust result that might occur. He further indicated the bill requires that the third felony be an unclassified offense. Number 776 JUDGE JIM HANSEN, Superior Court, Anchorage, testified via teleconference in support of the legislation and further testified that HB 334 would be a good tool to use and he is pleased that prosecutorial discretion is a component of the legislation. Specifically, Judge Hansen testified that on page 4, line 26, adding the word "similar" and deleting the words "substantially identical" would create difficulties for the court. REP. GREEN asked if there would be any benefit of having a mandatory life or another 15 year sentencing addition to present law that would lock up an individual for the remainder of his life. MR. GUANELI responded that the first two "strikes" could be a class of lower felonies that would satisfy those first two strikes. He then added that on the first felony conviction, an individual might only serve one or so years. On the second felony, they might serve only four or so years, maybe more. He felt they were talking about people who are in their late twenty's or early thirty's who would commit the serious third felony. TAPE 94-29, SIDE B Number 006 CONFIRMATION OF ETHEL STATON TO BOARD OF GOVERNOR'S OF ALASKA BAR Number 008 CHAIRMAN PORTER suspended testimony on HB 334 and moved to take up confirmation of Ethel Staton to the Board of Governor's of the Alaska Bar Association. Number 078 ETHEL STATON testified via teleconference on her background and life in Alaska. Number 105 CHAIRMAN PORTER asked Ms. Staton if she was familiar with the function of the Alaska Bar. Number 111 MS. STATON responded that she has served on the Alaska Bar Board over the past two years. Number 120 REP. JAMES moved that Ethel Staton's name be forwarded with individual recommendations. Number 130 CHAIRMAN PORTER asked for objections; and hearing none, moved the confirmation of Ethel Staton from committee. CONFIRMATION OF LAURIE DAHMS TO THE VIOLENT CRIMES COMPENSATION BOARD Number 140 CHAIRMAN PORTER brought up Laurie Dahms' appointment to the Violent Crimes Compensation Board. Number 149 LAURIE DAHMS provided background information and indicated she has been serving on the Violent Crimes Compensation Board for the past six months and enjoys dealing with the various issues that come before the board. Number 179 REP. JAMES moved the confirmation of Laurie Dahms from committee with individual recommendations. CHAIRMAN PORTER asked if there were any objections; and hearing none, the confirmation of Laurie Dahms was moved from committee. CONFIRMATION OF JANICE LEINHART TO THE ALASKA JUDICIAL COUNCIL Number 196 CHAIRMAN PORTER next brought before the committee the confirmation of Janice Leinhart to the Alaska Judicial Council. Number 198 JANICE LEINHART testified that the decision that the Judicial Council make are important decisions and she feels her input from a citizen's point of view could be a viable part of the activities of the Judicial Council. Number 214 REP. JAMES moved the confirmation of Janice Leinhart to the Judicial Council with individual recommendations. Number 219 CHAIRMAN PORTER asked if there were any objections; and hearing none, moved the confirmation of Janice Leinhart from committee. CONFIRMATION OF ROBERT CONGDON TO THE VIOLENT CRIMES COMPENSATION BOARD Number 223 CHAIRMAN PORTER next brought before the committee the confirmation of Robert Congdon to the Violent Crimes Compensation Board. Number 227 ROBERT CONGDON testified that he is an attorney and serves currently as the attorney representative to this board. He further stated that he has found the experience on this board to be rewarding and was pleased to be nominated to serve another term. Number 242 REP. JAMES moved the confirmation of Robert Congdon to the Violent Crimes Compensation Board with individual recommendations. Number 245 CHAIRMAN PORTER asked if there were any objections; and hearing none, the confirmation of Robert Congdon was moved from committee. CONFIRMATION OF JEFFREY FELDMAN TO THE COMMISSION ON JUDICIAL COUNCIL Number 252 CHAIRMAN PORTER next brought before the committee the confirmation of Jeffrey Feldman to the Commission on Judicial Conduct. Number 257 JEFFREY FELDMAN testified that he is an attorney in Anchorage and appreciates the opportunity to serve on the Board on behalf of the Governor. He further indicated that he has worked with the Ninth Circuit on various issues and he feels he has the experience which is crucial to ensure public confidence in the judicial system is maintained. Number 275 REP. JAMES moved the confirmation of Jeffrey Feldman with individual recommendations. Number 282 CHAIRMAN PORTER asked if there were any objections and hearing none, the confirmation of Jeffrey Feldman was moved from committee. HB 162 - CAPITAL PUNISHMENT FOR MURDER Number 291 REP. PHILLIPS moved to rescind the committee's action in failing to move HB 162 from committee at this time. Number 295 CHAIRMAN PORTER asked for discussion on the motion. Number 298 REP. PHILLIPS, in speaking to the motion, indicated that when she cast her vote on not moving HB 162 from committee, she did so with the concern that the committee did not have testimony that concurred with the feelings of the public on this issue, particularly from the Kenai Peninsula. She further indicated, for the record, that she had a file with 132 direct communications in support of HB 162 and 39 communications against HB 162 and asked that this material be considered a part of the record. Number 306 CHAIRMAN PORTER restated the motion before the committee and asked for further discussion or objection to the motion. Hearing none, HB 162 was brought before the committee. Number 345 REP. JAMES moved Sponsor Substitute for HB 162 from committee with individual recommendations. Number 349 REP. GREEN objected to the motion. REP. KOTT testified that he supported HB 162 and that he firmly believed that there were individuals who committed such heinous crimes that there was no hope for them and that there was then a need for the death penalty. REP. GREEN testified that he felt there were reasonable alternatives to keeping violent offenders away from society without instituting a death penalty and that the fiscal notes indicated that it was less costly to keep them incarcerated. He further expressed concern that while public opinion may be overwhelming in support of HB 162, he simply could not support such a measure. Number 423 REP. JAMES testified that while she understood the arguments surrounding the cost of implementing a death penalty as well as the moral issues raised surrounding HB 162, she felt there is a kind of crime, such as multiple death or dismemberment, that some people do to another person, and there should be a capital punishment law on the books. She therefore felt obligated to support public opinion on this issue. Number 455 REP. KOTT remarked that if you look at life imprisonment for a person who is twenty years old, if you were to look at the cost, you would come up with about a two million dollar fiscal note. He felt that the potential was there for a wash as far as the fiscal ramifications were concerned. He further testified that he felt government had a responsibility to society that says whether you are behind bars or on the street, government should protect its citizens. He felt HB 162 would show an effective deterrent and should be implemented. Number 494 CHAIRMAN PORTER testified that he would support moving HB 162 from committee, but unless he heard something totally different than the testimony previously before the committee, he felt that the present 99-year sentence, or life without parole, was sufficient. He further felt that having been affected by budgets dealing with this type of activity, he felt we could not, in good conscience, spend money on someone who, in effect, is not going to perpetrate any more crimes in society. He, therefore, would not support HB 162 if it were to come to the House floor for a vote. Number 544 REP. KOTT remarked that the last time this bill was heard they did make an amendment that would take away the advisory vote provision of the bill so the bill would move from committee as a Sponsor Substitute for HB 162. Number 574 CHAIRMAN PORTER asked for a roll call vote which was taken as follows: REP. GREEN Yes REP. KOTT Yes REP. PHILLIPS Yes REP. JAMES Yes REP. PORTER Yes Number 579 CHAIRMAN PORTER declared that Sponsor Substitute for HB 162 amended Judiciary was moved from committee. The House Judiciary Committee was adjourned at 2:42 p.m.