02/25/1998 01:12 PM JUD
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE February 25, 1998 1:12 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Brian Porter Representative Norman Rokeberg Representative Jeannette James Representative Eric Croft Representative Ethan Berkowitz MEMBERS ABSENT All members present COMMITTEE CALENDAR HOUSE BILL NO. 285 "An Act relating to suspension or revocation of commercial fishing permits and privileges." - MOVED CSHB 285(RES) OUT OF COMMITTEE BRIEFING ON VENETIE DECISION * HOUSE BILL NO. 390 "An Act relating to marriage; and amending Rules 54 and 56, Alaska Rules of Civil Procedure." - HEARD AND HELD (* First public hearing) PREVIOUS ACTION BILL: HB 285 SHORT TITLE: POINT SYSTEM FOR COMMERCIAL FISH VIOLATION SPONSOR(S): REPRESENTATIVES(S) IVAN Jrn-Date Jrn-Page Action 05/10/97 1807 (H) READ THE FIRST TIME - REFERRAL(S) 05/10/97 1807 (H) RESOURCES, JUDICIARY 01/29/98 (H) RES AT 1:00 PM CAPITOL 124
01/29/98 (H) MINUTE(RES) 02/12/98 (H) RES AT 1:00 PM CAPITOL 124 02/12/98 (H) MINUTE(RES) 02/19/98 (H) RES AT 1:00 PM CAPITOL 124 02/19/98 (H) MINUTE(RES) 02/23/98 2401 (H) RES RPT CS(RES) NT 4DP 1NR 02/23/98 2402 (H) DP: JOULE, GREEN, OGAN, HUDSON; 02/23/98 2402 (H) NR: BARNES 02/23/98 2402 (H) ZERO FISCAL NOTE (F&G) 02/25/98 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 390 SHORT TITLE: CHARTER MARRIAGES SPONSOR(S): REPRESENTATIVES(S) KELLY, Dyson, Therriault Jrn-Date Jrn-Page Action 02/11/98 2280 (H) READ THE FIRST TIME - REFERRAL(S) 02/11/98 2280 (H) JUDICIARY, FINANCE 02/25/98 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER REPRESENTATIVE IVAN IVAN Alaska State Legislature Capitol Building, Room 418 Juneau, Alaska 99801 Telephone: (907) 465-4942 POSITION STATEMENT: Sponsor of HB 285. TOM WRIGHT, Legislative Assistant to Representative Ivan Ivan Alaska State Legislature Capitol Building, Room 418 Juneau, Alaska 99801 Telephone: (907) 465-3882 POSITION STATEMENT: Answered questions on CSHB 285(RES). JOHN GLASS, Colonel, Director Division of Fish and Wildlife Protection Department of Public Safety 5700 East Tudor Road Anchorage, Alaska 99507-1225 Telephone: (907) 269-5509 POSITION STATEMENT: Answered questions and testified in support of CSHB 285(RES). BRUCE C. TWOMLEY, Chairman Commercial Fisheries Entry Commission 8800 Glacier Highway, Suite 109 Juneau, Alaska 99801-8079 Telephone: (907) 789-6160 POSITION STATEMENT: Answered questions on CSHB 285(RES). DEAN PADDOCK P.O. Box 21951 Juneau, Alaska 99802 Telephone: (907) 463-4970 POSITION STATEMENT: Testified in support of CSHB 285(RES). BRUCE M. BOTELHO, Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-2133 POSITION STATEMENT: Briefed committee on Venetie decision and related topics; answered questions. BARBARA J. RITCHIE, Deputy Attorney General Civil Division Office of the Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-2133 POSITION STATEMENT: Answered questions on Venetie decision and related topics. REPRESENTATIVE PETE KELLY Alaska State Legislature Capitol Building, Room 411 Juneau, Alaska 99801 Telephone: (907) 465-2327 POSITION STATEMENT: Sponsor of HB 390. AL ZANGRI, Chief Vital Statistics Division of Public Health Department of Health and Social Services P.O. Box 110675 Juneau, Alaska 99811-0675 Telephone: (907) 465-3392 POSITION STATEMENT: Testified on HB 390; requested amendments to Section 1, part (b). ACTION NARRATIVE TAPE 98-24, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 1:12 p.m. Members present at the call to order were Representatives Green, Bunde, Porter, James and Berkowitz. Representatives Rokeberg and Croft arrived at 1:15 p.m. and 1:19 p.m., respectively. HB 285 - POINT SYSTEM FOR COMMERCIAL FISH VIOLATION Number 0025 CHAIRMAN GREEN announced the first item of business would be HB 285, "An Act relating to suspension or revocation of commercial fishing permits and privileges." Number 0105 REPRESENTATIVE IVAN IVAN, sponsor, paraphrased the sponsor statement for CSHB 285(RES), explaining that the bill was introduced to address concerns about illegal fishing activities committed by commercial fishers in his own district and in other commercial fishing communities throughout the state. He indicated that when fishers are convicted for such activities, some consider it a cost of doing business. REPRESENTATIVE IVAN informed members that the intent of this legislation is to establish a point system against a commercial fishing permit holder for a conviction of commercial fishing laws found under Title 16. Should 12 or more points be assessed against a permit holder during any consecutive 36-month period as a result of convictions, the Commercial Fisheries Entry Commission (CFEC) is given the authority to suspend the permit for a one-year period. A suspension of two years occurs when 16 or more points are accumulated during a consecutive 48-month period. A suspension of three years is invoked when a permit holder accumulates 18 or more points during any consecutive 60-month period. Two points will be deducted from the total points assessed against a permit if the permit holder is not convicted of a violation of commercial fishing laws during a 12-month period after the date of the last conviction. Representative Ivan noted that the bill outlines the assessment of points, the suspension process, the notice and appeal process, and the notification to the CFEC by the court system. REPRESENTATIVE IVAN explained that another provision in CSHB 285(RES) affects emergency transfers of a permit. Should the permit holder decide to transfer the permit, any points accumulated by the person in possession of a permit will also be assessed against the person to whom it is transferred. This provision will discourage permit transfers by a permit holder who has accumulated a large number of points and is trying to avoid suspension by transferring the permit to another fisher. Number 0324 REPRESENTATIVE IVAN indicated that although they had originally targeted against permits, they had decided to target the permit holders because of concerns by lending institutions such as the Commercial Fisheries and Agricultural Bank (CFAB). REPRESENTATIVE IVAN pointed out that while many fishers operate lawfully, others take advantage of the high income, breaking a few laws and then paying off the violations. This bill discourages such behavior and levels the playing field for honest commercial fishermen. Representative Ivan added, "And there were some concerns by commercial fishermen, but we've addressed those and compromised in order to ... preserve the permit system." REPRESENTATIVE IVAN noted that there had been input by CFAB, by the CFEC, and by Department of Public Safety personnel who enforce fishing violations; he believes most of their concerns had been addressed. He advised members that Bruce Twomley of the CFEC and Tom Wright, his own staff member, could respond to questions. Number 0439 REPRESENTATIVE CON BUNDE commented that he hopes this will solve the problem at Egegik, where people who get away with a violation once can "make a payday." He referred to page 2, which lists violations. He asked whether those are all the violations possible or just the most egregious ones. Number 0487 TOM WRIGHT, Legislative Assistant to Representative Ivan Ivan, Alaska State Legislature, answered that they are the most egregious, and they fit under the Title 16 violations. He explained, "There might be some very minor violations that might not be included in here, but those are so minor in nature that it was decided not to do any point assessment. We could go on and have a three- or four-page list of points, with all the Title 16 violations. ... We had two work sessions on this bill of about three hours each, and this was decided that these were the most egregious." Number 0530 REPRESENTATIVE BRIAN PORTER noted that the sponsor statement says the CFEC is given the authority to suspend the permit. As he reads the bill, however, it seems to be mandatory. He asked whether the intent is that it be mandatory. REPRESENTATIVE IVAN said yes. Number 0571 REPRESENTATIVE ETHAN BERKOWITZ referred to the list on page 2 and said he doesn't see points for fish that are undersized or of the wrong gender, for example. MR. WRIGHT suggested perhaps Colonel Glass could address that. Number 0624 JOHN GLASS, Colonel, Director, Division of Fish and Wildlife Protection, Department of Public Safety, answered via teleconference from Anchorage that these are mostly commercial fishing violations. He agreed with Mr. Wright that they are the most egregious ones; through all the work sessions, these were highlighted by Colonel Glass's staff and by members of the committee that worked on this bill as the ones that really needed to be addressed. Colonel Glass also agreed that some smaller ones will probably get through. He pointed out that just as not every violation generates points against a driver's license, they anticipate the same with this bill. COLONEL GLASS advised members that the Fish and Wildlife Protection Division supports this bill in its entirety. He stated, "Representative Ivan we applaud for doing this. This has come at the request of the commercial fishermen in Bristol Bay, primarily, but almost all the groups that I've spoken with fully support this bill." CHAIRMAN GREEN asked whether that answered Representative Berkowitz' question about gender or size. Number 0698 REPRESENTATIVE BERKOWITZ said it did. He pointed out that his experience has been that those kinds of violations occur with crab. He asked whether they could find some way of including those, noting that in his experience those violations have occurred fairly frequently, particularly regarding undersized crab. He then asked how many people would lose their licenses under this scheme. Number 0739 COLONEL GLASS replied, "That's unknown. We do in some cases have multiple violations on a regular basis, most especially last year, I believe it was, when they did an in-river fishery; there were people that were violating and possibly accumulating points, two or three violations a day for fishing in closed waters. Now, if they're a violation, they're only going to get half the number of points, so it would take probably six. The exact number I don't have a hard number on." He suggested perhaps Bruce Twomley from the CFEC could address that. He restated that there are multiple violators out there, whom this will affect. Number 0790 CHAIRMAN GREEN followed up on Representative Berkowitz' question about gender and size violations for crab fishing, saying it seems that could certainly be as important as fishing with an improperly marked vessel. COLONEL GLASS replied, "You're right, and it's one that we just overlooked." Number 0813 REPRESENTATIVE NORMAN ROKEBERG asked if all commercial fishers in Alaska hold permits or if they just have commercial fishing licenses. He asked about the distinctions between those. Number 0863 BRUCE C. TWOMLEY, Chairman, Commercial Fisheries Entry Commission (CFEC), responded, "Anyone who is an operator of gear, anyone who is a captain responsible for a unit of gear, has to has a license issued by us. It's a limited entry permit or an interim use permit, as opposed to crew licenses that are administered by the Department of Fish and Game. So the captains would be swept in. The people who have a stake ... in a limited entry permit or an interim use permit would be swept in, in this legislation." Number 0908 REPRESENTATIVE ROKEBERG asked, "There's no such animal as a commercial fishing license, there are these two types of permits, which, if you are engaged in commercial fishing, you have to have one or the other?" MR. TWOMLEY said that is correct; they need one or the other. REPRESENTATIVE ROKEBERG asked whether "permit holder" is the appropriate term of art here. MR. TWOMLEY replied, "For our purposes, yes. ... This covers the permits we issue, we administer." Number 0939 REPRESENTATIVE BUNDE said, "On that point, somebody with a commercial fishing license can go to work for any permit holder if the permit holder will hire them. The permit holder, ... however, can't just go fishing without the permit. So, the person with the most to lose here is the permit holder." REPRESENTATIVE BUNDE noted that fishing in closed waters or during a closed season is a major violation. He observed, deferring to Representative Ivan's judgment, that wanton waste is equally as serious but is penalized at a lower level than the other two. He asked why wanton waste is at a lower level of penalty. Number 1003 MR. WRIGHT explained that it was debated and there was a policy decision, made within the working group, to make it a four-point violation. While everyone had seemed to like it, they are not adamant about four points by any means. Number 1035 REPRESENTATIVE BUNDE asked whether bycatch is considered wanton waste. MR. WRIGHT said he'd guess that under some scenarios it would be wanton waste, but under other scenarios, no. He said he really couldn't answer, stating his assumption that Representative Bunde was talking about the trawl industry. REPRESENTATIVE BUNDE affirmed that. He suggested that most commercial fishermen won't be involved in wanton waste because they want to sell the product. He said he could see two scenarios. First, someone might leave nets in the water and ignore them, with the fish subsequently rotting. The second scenario would involve bycatch. He added, "I've never heard anyone charged in a case of bycatch with wanton waste, but they're certainly throwing away the product." Number 1085 MR. WRIGHT suggested Colonel Glass would be the best person to answer that. He said he would imagine the wanton waste on a trawler would occur when they go beyond their allotted bycatch limit. Number 1114 COLONEL GLASS stated that he had nothing to add, except that most of the trawlers are covered under the federal auspices and are closely monitored by those people, too. Number 1134 REPRESENTATIVE PORTER asked whether setnet sites are covered under this as well. MR. WRIGHT said yes. Number 1168 REPRESENTATIVE BERKOWITZ stated his understanding that these violations are all strict-liability violations. BRUCE TWOMLEY explained that two levels of violations are addressed in the bill: strict-liability violations and misdemeanors. He said he believes the points set out cover the misdemeanor level, and a following section assigns half of those points for the strict-liability violations. Number 1168 REPRESENTATIVE BERKOWITZ replied, "But there are some strict- liability misdemeanors, if I recall, too, which is an abnormality within the law. But the point I wanted to make was, for example, you get fishing in closed waters, an over-the-line-type offense. There's two types. There's the aggressive going over the line deliberately, and there's the engine failure or drifting over the line problem. And is there any way of distinguishing between those two cases, in terms of point assessment?" MR. TWOMLEY said he believes that kind of distinction takes place all the time in the field, when the enforcers actually charge someone. He suggested perhaps Colonel Glass could address that. Number 1212 COLONEL GLASS said that is correct. Most strict violations, as such, are dealt with that way. However, for the most serious and egregious violations, such as fishing way over the line, those people start out at a misdemeanor level. They also deal on a regular basis with situations where there is a net in the wheel, for example; those circumstances are mitigators, handled in the field at the time of the violation, for the most part. Number 1250 REPRESENTATIVE BUNDE asked, "Colonel Glass, am I to assume that, like in many other cases, there is prosecutorial discretion? And this, of course, is only after the person has been charged and convicted of these violations that this would come into play." COLONEL GLASS said that is correct. Although the bill originally indicated it was from the date of violation, now it is upon the date of conviction that the points are assessed. Number 1284 CHAIRMAN GREEN stated his understanding that it is not uncommon for someone to be cited for one or more of these violations, and that the offender can plead to a lesser offense. He asked what they normally plead down to, for going over the line, for example. COLONEL GLASS replied that normally, if a person is charged with fishing in closed waters, it is a violation; most of the people plead to that, as opposed to a misdemeanor. As Representative Ivan has indicated, a standard rate of penalty is applied. He cited an example of a $3,000 penalty with $1,000 suspended, so that there is a $2,000 fine that is considered a cost of doing business in Bristol Bay. CHAIRMAN GREEN asked how that pleading would affect this point system. COLONEL GLASS answered, "As long as it's a violation, it would still be half of the six points. So, each pleading would still be three points, instead of the six." Number 1364 CHAIRMAN GREEN posed a situation where a person has a one-year suspension, gets a two-point reduction, and then the next day receives a six-point violation. He asked whether the new violation would offset the previous day's two-point bonus. MR. WRIGHT explained that the two-point reduction would take place. The points are not assessed until the date of conviction. If that person were convicted, the new points would then be assessed. Number 1436 REPRESENTATIVE ROKEBERG asked Colonel Glass whether this would be a good tool and in what way it would enhance the enforcement of laws in Alaska. Number 1481 COLONEL GLASS said he believes this will greatly enhance his division's enforcement abilities. He restated that in Bristol Bay, people feel that going across the line and doing these type of violations is just the cost of doing business. Colonel Glass explained, "Now, when I say that, that's not my words. This is the 400-plus commercial fishermen in Bristol Bay region alone that I have spoken to personally in regards to this issue. They think that it's excellent." COLONEL GLASS recounted that the previous week, he wrote a letter in response to an individual who had seven violations in the last five years; that individual had tried to explain to Colonel Glass that he was not a chronic offender. Colonel Glass said those are the types of people that make it difficult for the honest, law- abiding fishermen, which probably 98 percent of them are. "In fact, we're trying to make it more on a level playing field for those people, and we feel that this bill will do just exactly that," he concluded, adding that this was brought forth by the fishermen, who themselves want it. Number 1547 CHAIRMAN GREEN asked whether this help in enforcement would be because of the fear of loss of the permit, or whether there was a plan to have additional staff to patrol. COLONEL GLASS stated the belief that the specter of losing one's permit, and the resulting large loss of income, will be a deterrent to a potential violator. He said his agency will not be doing any more enforcement than they already do, because they are "maxed out" in that regard. Number 1599 MR. WRIGHT advised members that as a permit holder and a commercial fishermen himself, he knows that if he got a ticket for six points, he would be very careful about where he put the net again and how he played the line. He said Cook Inlet is becoming that same type of fishery, as are other fisheries throughout the state. Number 1637 REPRESENTATIVE JEANNETTE JAMES said this revisits an issue from a previous year, when they considered increasing the fines on these types of violations. She asked whether anyone recalled the fate of that legislation. MR. WRIGHT replied that he remembered a bill from a few years ago, sponsored by Senator Halford, that increased commercial fishing fines. Mr. Wright pointed out that there is much latitude from court to court, which is where they run into a problem. REPRESENTATIVE JAMES said she recalled that now. She then commented that she likes the idea of the point system. She said when people just paid a fine for a speeding ticket, it was no big deal, but the points assessed against the driver's license made a big difference. Number 1726 REPRESENTATIVE BUNDE advised members that he is somewhat familiar with the Egegik fishery. If someone goes over the line even 20 feet and can stay there 10 minutes, they make many thousands of dollars, putting the people who stay just behind the line at a great disadvantage, because the fish are so narrowly focused they can literally cut off the incoming stream. Number 1762 CHAIRMAN GREEN asked whether this might be almost self-policing, as it would be to honest fishermen's advantage to take the boat number of an offender. MR. WRIGHT agreed that in some aspects, this may be self-enforcing. When people receive notices of points being assessed after a conviction, fishermen will become more careful, regardless of whether there is enforcement in the area. Number 1789 REPRESENTATIVE BERKOWITZ pointed out that Alaska has fewer "fish cops" than the state of Rhode Island does. He stated his understanding that Colonel Glass has 80 or 85 officers working for him, covering the entire state, which Representative Berkowitz said is a huge problem. "And anything we can do to magnify their force, something like this, is something we ought to think about doing," he concluded. Number 1817 REPRESENTATIVE ROKEBERG asked whether the judiciary looks at points as a further penalty and whether that had affected the level of fines relating to driving offenses. He then asked whether anyone had any ideas about that. CHAIRMAN GREEN said, "Representative Porter?" REPRESENTATIVE PORTER responded, "No." Number 1856 REPRESENTATIVE ROKEBERG referred to Section 7, which he said relates to revocation of a permit that has been pledged as security for a loan. He noted that there are many citations to statutes there. He then referred to Section 11, which he said refers to an entry permit pledged as collateral for a loan. He asked what the effects of these sections are. He further asked what occurs in this instance. Number 1889 MR. TWOMLEY replied, "The effect of those two provisions is to ensure that if the permit itself is security to one of the two state-authorized loan programs for a loan, that the security is not lost. The individual may lose the privilege, but the security is still maintained for the benefit of the two agencies." Number 1905 REPRESENTATIVE ROKEBERG asked whether it is possible that a commercial bank or another institution other than the state programs would have a security interest in the permit. MR. TWOMLEY replied, "That's not the case. There's only two state- authorized loan programs that can take a security interest in an entry permit. Otherwise, the permit has been characterized by the legislature as a privilege, one that the legislature can modify at will." REPRESENTATIVE ROKEBERG suggested that only the Internal Revenue Service (IRS) could have a claim against it, and not any other commercial financial institution, for purposes of collateralization. MR. TWOMLEY said that is correct. Number 1939 REPRESENTATIVE ROKEBERG referred to Section 11 and asked about existing law relating to a buy-back provision. MR. TWOMLEY answered that it is existing law, and the function of this section is to roll in the termination of the debtor's interest under this new legislation into the existing provision. REPRESENTATIVE ROKEBERG commented that it is a new subsection under Section 10. He asked whether the only debtor's interest that would be created would be with one of the two state-owned institutions. He asked whether there could be any other kind of debtor or interest in that permit. MR. TWOMLEY replied, "Not a private debtor, but arguably Child Support [Enforcement Division] and the Internal Revenue Service could have a claim." REPRESENTATIVE ROKEBERG said these permits are not used as security interests for any other kind of indebtedness, and they are restricted by state statute in that regard. He asked whether it is a correct assumption that they are not going to be interrupting any commerce here, or creditors' rights and relationships, by passing this statute. MR. TWOMLEY said that is correct. Number 2005 CHAIRMAN GREEN asked about the process for buying a permit that comes back to the CFEC, and whether someone could buy it from the commission for the unpaid balance under the buy-back program. MR. TWOMLEY replied, "The mechanics of it are that the lending program gets to dispose of the permit. But if there's a buy-back program in place, they have to make an offer to the commission first, assuming we had funds to administer a buy-back program. They'd have to make the offer to us before they offered the permit to the public." He noted that it is a buy-back by the commission. REPRESENTATIVE ROKEBERG likened it to taking in stock; they are buying it back to diminish the number of permits available. Number 2051 MR. WRIGHT pointed out that someone under suspension would be out of that fishery for a year's period, except for the possibility of being a crew member. CHAIRMAN GREEN asked, "Now, if you didn't have the funds to buy it, could a third party then buy it for the unpaid balance?" [Mr. Twomley nodded.] Number 2077 REPRESENTATIVE BERKOWITZ referred to a provision on page 4, line 23, which allows for bail forfeiture essentially to count as conviction for purposes of assessing points. He asked whether anyone had looked into due process or other constitutional provisions that might allow that. Number 2103 MR. WRIGHT said he couldn't respond to that, and that it was a subsection inserted by the drafter. Number 2136 DEAN PADDOCK came forward to testify on his own behalf, stating that he lives in Juneau and fishes commercially in Bristol Bay. He specified that he was speaking to identify with and hopefully validate the sponsor's statements, and he also identifies with the statements of the Representative from North Pole. He told members this has long been requested by the legal fishing community. "The rest, I guess, are going to have to look out for themselves," he added. MR. PADDOCK suggested that one major problem remains for the fishermen, and, to some degree, for Public Safety. Particularly in Bristol Bay, the boundaries of these fishing lines are identified largely by Loran C lines. Therefore, there is a question of where the line is at the moment that a violation is alleged to have occurred. "And that, of course, is the problem which this bill attempts to solve," he added. MR. PADDOCK stated, "I do hope that Public Safety, the Division of Commercial Fisheries, the Board of Fisheries and the fishing public will continue to attempt to address this issue. I believe this bill will be effective largely through its ability to scare the heck out of everybody, including the legal fishermen." He referred to the "law of unintended consequences," noting that he is not an attorney. He suggested that is what Representative Berkowitz' question probably addressed. Mr. Paddock concluded by saying in spite of this "hopefully minor concern," this bill has his support. He urged the committee to go ahead on it full-steam. Number 2315 REPRESENTATIVE BERKOWITZ said he'd had the pleasure of going to Bristol Bay and fishing with Mr. Paddock during the summer. CHAIRMAN GREEN informed members, "We've had some input from attorneys along the side line, and figure that it's unusual but legal." Number 2329 MR. WRIGHT indicated he had consulted with Commissioner Otte and George Utermohle, the drafter of the bill, and this is based on the guidelines in the forfeiture statutes of the CFEC. It is designed so that someone charged with a violation, if it is serious enough, can go in, post bail, post collateral, go back out and keep fishing, and come back after the fishing season and take care of that. Number 2356 REPRESENTATIVE PORTER said the analogy between this and driver's license points is obvious. He stated, "And the question of double jeopardy has been litigated in the area of driver's license points, whether a court can fine and then an administrative suspension is a violation of double jeopardy. It is very well established by the courts that it is not, and I'm sure that the same ruling would be given in this case." Number 2382 CHAIRMAN GREEN asked what the sponsor's desire is, in response to concern that this doesn't cover size or gender violations, especially relating to crab. He also mentioned the issue of bycatch. Number 2389 REPRESENTATIVE IVAN responded that he doesn't have any problem with the recommendation by Representative Berkowitz. He said they could handle it either in the current committee or on the floor, whichever is the committee's desire. REPRESENTATIVE JAMES and REPRESENTATIVE BERKOWITZ both suggested doing a conceptual amendment in this committee. Number 2404 REPRESENTATIVE BUNDE announced he would like to remove his concern about bycatch, saying that he believes wanton waste and bycatch are two different things. "My only concern was wanton waste should have been, in my mind, higher, but it's not a reason to hold the bill," he added. Number 2408 REPRESENTATIVE ROKEBERG noted that there had been an omission and policy calls. He suggested that the committee briefly look at what violations of fishing laws and fines there are, to see whether there is anything else they want to add or subtract. He also said he didn't want to hold the bill any longer than needed. CHAIRMAN GREEN acknowledged that admitted oversight but expressed concern about holding it up to go back over policy. REPRESENTATIVE JAMES said it seems there is a difference between the crab issue and this fishing issue. TAPE 98-24, SIDE B Number 0006 REPRESENTATIVE JAMES continued, saying it seems that the list in this bill specifically apply to that Bristol Bay fishing area. She said she would be comfortable passing the bill along as it is, but she would also be comfortable, if the sponsor had no problem with it, adding those two issues to the list, as a conceptual amendment. She said she didn't want to hold the bill up. Number 0022 COLONEL GLASS pointed out that when his officers go through a crab vessel, they go by percentage of females and percentage of undersized crab. If there were amendments relating to the crab fishery, his division would have to get those percentages to plug in. "And I don't recall right off the top of my head, but it seems to me that it has to be more than, like, 5 percent undersized before we would take any action in any case," he stated, adding that the most egregious ones, which would be well over that percentage, are "hammered pretty good." REPRESENTATIVE JAMES said it doesn't seem to fit the purpose of this bill. CHAIRMAN GREEN asked Representative Berkowitz, who had originally raised the point, what he thinks about it. REPRESENTATIVE BERKOWITZ said he doesn't know much about fishing or crabbing. However, his experience prosecuting and doing defense work was that the undersized crab problem is pervasive. He said that if they are trying to discourage behavior, the crabbers need discouragement just as much as anyone else. He noted that they are not picking up people for one undersized or one female crab; that certainly doesn't rise to the level of anyone's attention. But if people are misbehaving enough, they ought to feel the pinch. CHAIRMAN GREEN responded that he certainly understands what Colonel Glass is saying. However, this wouldn't get into the percentages if they just made another line entry, "size or gender violation, so many points." COLONEL GLASS said that would be fine with him. CHAIRMAN GREEN asked how many points that should be. Number 0106 REPRESENTATIVE PORTER said, "Not trying to be negative, but now I'm uncomfortable. I don't feel that this is the committee is the one to discuss the ramifications of crabbing and crab violations and the degree of violations as it equates to the degree of points. That is a Resources Committee function. The legality of this seems clear. It is intended, I think, to address one area of resource management, and that isn't crabbery. If Resource folks want to do that, then they should get a bill to do that. But I'm uncomfortable doing it here at the table." Number 0140 REPRESENTATIVE BERKOWITZ offered to make a conceptual amendment, to resolve it. He referred to the House Resources Standing Committee, which had been heavily occupied with the subsistence issue lately, and he noted that multiple committee referrals exist so that new ideas can be generated as a bill moves through the process. He also pointed out that some or all of these restrictions apply to crab as well as to fin fisheries; he said he saw no particular problem with having something specific to crabbing. He concluded, "That's a law enforcement question, not so much a resource question, which it would seem to me properly within our purview." CHAIRMAN GREEN asked whether Representative Berkowitz was making an amendment. Number 0172 REPRESENTATIVE BERKOWITZ replied, "Conceptual amendment, to include the crabbing violations: undersize, gender." CHAIRMAN GREEN asked whether he had a point system. REPRESENTATIVE BERKOWITZ replied that he couldn't say what the points were going to be. Number 0188 MR. WRIGHT offered to work with Representative Berkowitz or his staff, or with the Department of Public Safety, to try to come up with the proper point assessment. He said it is a good idea. Number 0209 REPRESENTATIVE IVAN said he felt it was drifting into an area with which he isn't totally familiar. He would try to accommodate the amendment but could make no assurances that they would arrive at that. Representative Ivan emphasized that he didn't want to endanger the bill, which is very much needed in the Bristol Bay area for line enforcement purposes. Number 0237 REPRESENTATIVE BERKOWITZ withdrew his conceptual amendment, saying he would discuss with Representative Ivan possibly doing something when this goes to the floor. MR. WRIGHT pointed out that salmon fishermen helped to put this together. Number 0252 REPRESENTATIVE PORTER made a motion to move from committee CSHB 285(RES), with individual recommendations and attached fiscal notes. CHAIRMAN GREEN asked whether there was any objection. There being none, CSHB 285(RES) moved from the House Judiciary Standing Committee. BRIEFING ON VENETIE DECISION Number 0271 CHAIRMAN GREEN announced that Attorney General Bruce Botelho would brief the committee on the United States Supreme Court decision issued that morning in the Venetie case. All committee members were present. BRUCE M. BOTELHO, Attorney General, Department of Law, explained the Venetie decision and its implications, then answered members' questions on Venetie, Indian country and related topics. BARBARA J. RITCHIE, Deputy Attorney General, Civil Division, Office of the Attorney General, Department of Law, also answered questions. NOTE: This meeting was recorded and handwritten log notes were taken. A copy of the tape(s) and log notes may be obtained by contacting the House Records Office at 130 Seward Street, Suite 211, Juneau, Alaska, 99801-1182, (907) 465-2214, or after adjournment of the second session of the Twentieth Alaska State Legislature, in the Legislative Reference Library. HB 390 - CHARTER MARRIAGES Number 2273 CHAIRMAN GREEN announced the final item of business would be HB 390, "An Act relating to marriage; and amending Rules 54 and 56, Alaska Rules of Civil Procedure." REPRESENTATIVE PETE KELLY, sponsor, referred members to a large chart prepared by his staff. He expressed the belief that HB 390 reflects the interests of the state of Alaska, which has a legitimate concern about the state of marriage in Alaska. He said marriage is the institution that provides future citizens, and if those future citizens are raised in stable families, they are more likely to succeed and less likely to be a burden on the state. REPRESENTATIVE KELLY offered statistics from an article in the Boston Globe. First pointing out that no-fault divorce was created in 1969, he said since 1970 the divorce rate in the country has gone up 279 percent; the number of children living with divorced parents has gone up 352 percent; the number of children living in single-parent families has gone up 108 percent; and the number of couples living outside of marriage has gone up 553 percent. He noted that studies have been done regarding the effects on children. TAPE 98-25, SIDE A Number 0006 REPRESENTATIVE KELLY cited statistics relating to fatherless children, including an increase in: illegitimate births, failures of their own marriages, the high school drop-out rate, emotional and behavioral problems requiring counseling, and the rate of incarceration. He said the most reliable predictor of crime is neither poverty nor race, but growing up fatherless. He pointed out that these statistics reflect not only what happens in divorce but also in "illegitimate families." He said we must do something to stop people from being added to that population. Number 0074 REPRESENTATIVE KELLY explained that HB 390 describes another contract in statute. There is no enforcing agency. When a couple decides to marry, they will get a license for either marriage A or B. The first is a testament marriage, such as has existed since 1969 with no-fault divorce. If they choose that, everything is the same in Alaska for that couple as it would have been before. If they choose this new charter marriage, however, certain conditions will apply. There will be counseling before marriage, as well as leading up to the divorce. If a woman is in an abusive relationship, or if one spouse is sexually abusing a child of the marriage or a child of the other spouse, that person can get a divorce like anyone else can, which is provided for in the bill. REPRESENTATIVE KELLY explained that the difference is when the parties are just incompatible. This contract states that the couple will seek counseling on that. If they can't come to any conclusions based on that counseling, then they are going to live apart for a year. He said, "After that period of time, they can go seek and separation of bed and board, which is a legal separation; that lasts a year, and at the end of that time, they're divorced." Number 0233 REPRESENTATIVE KELLY indicated his hope that this will cause couples thinking of marrying to discuss their expectations beforehand and determine whether they agree. Perhaps those who don't agree won't marry in the first place, which he suggested would be a net benefit to the state. He suggested this will be a first step in stemming the tide of no-fault divorce and the wreckage that has brought on this country. REPRESENTATIVE KELLY told members, "I don't have any delusions about the fact that this is going to all of a sudden cure all of our problems, and there's not going to be any more single-parent families, and we're all going to live happily ever after and sing 'Kumbaya' together or anything like that. But I think it is a step." He pointed out that Alaska's divorce rate is 5.1 per thousand population, compared to the national rate of 4 per thousand. He specified that the rate is per thousand population, not per thousand who get married. Number 0330 REPRESENTATIVE KELLY said in the 1950s, only 11 percent of children could expect that their parents would break up. Nowadays, that is 50 percent. Enacting no-fault divorce essentially made divorce in this country as much of an institution as marriage, because 50 percent buy into divorce and 50 percent buy into a long-lasting marriage. Representative Kelly suggested it is time to do something about that, and this way preserves what he called the sacred right of choice in this country. He emphasized that it is all voluntary. If someone wants a higher tier of marriage, a more responsible contract at least as sacred as a business contract, this offers that choice. Number 406 CHAIRMAN GREEN said he was wondering whether this bill might increase the number of people living out of wedlock. He asked whether there are indications about that from other states where this has been done. REPRESENTATIVE KELLY replied that other states do this. For example, Louisiana has a "covenant marriage," but that has only been enacted for a short time and there is no data yet. Although Pennsylvania has something like this, somewhat, it may be comparing apples and oranges. Representative Kelly said it shows that states are now beginning to take these kinds of steps. Number 0477 REPRESENTATIVE KELLY told members that some cities have begun doing this, but not on a municipal level. The churches in cities have been getting together and creating something like this and then tracking what is going on in their own churches. He said divorce in the Christian community is almost as prevalent as elsewhere, and people have decided to do something about it. Perhaps 80 cities have done this now, and they think it has been successful. He doesn't know how well that data could be tracked, as it is within a specific population that may not apply to the rest of the state. Representative Kelly acknowledged that hadn't answered the question and said he didn't know that it will really have much impact on living out of wedlock. He suggested that with a third option, people may opt for a testament marriage anyway. Number 0578 REPRESENTATIVE ROKEBERG mentioned that there is no fiscal note from the Alaska Court System. He asked the sponsor to talk about the fiscal note from the Bureau of Vital Statistics and to comment on ramifications in the court system because of the necessity for hearings to grant separations from bed and board. REPRESENTATIVE KELLY replied that he hadn't talked to the Alaska Court System about the lack of fiscal note. He pointed out that there are divorced actions anyway, and the intent of HB 390 is to have fewer of them. He indicated he couldn't speak for the court system but that he thought they were perhaps assuming there would be the same number of hearings, or fewer. Number 0726 REPRESENTATIVE ROKEBERG remarked that they are adding a layer, and he suggested it would depend on how many people signed up for this social experiment. REPRESENTATIVE KELLY responded that no-fault divorce should be considered the social experiment, adding, "This is what our parents were married under, ... essentially what you see in this bill." He said it isn't increasing the number of people married, and that to divorce, couples must go through a court action anyway. "So, if we're talking about the number of divorces, I think what you're saying is there'd have to be an increase in the number of people married to actually have an increase in the number of people divorced," he concluded. REPRESENTATIVE ROKEBERG restated that it adds the separation action before divorce, which would require an additional court appearance. CHAIRMAN GREEN suggested it would be moot if after the first court hearing the couple reunited. REPRESENTATIVE KELLY said he didn't mean to speak for the court system, which had not provided a fiscal note. He then stated, "There are a number of breaks before you get to that, and maybe they're just assuming they're going to have fewer to deal with, it's going to be a net wash." Number 0775 REPRESENTATIVE ROKEBERG said it is apparently quite costly, with some $13,300 to print up forms in the first year, and $5,000 thereafter. He asked what it costs to get a marriage license, suggesting it could be a self-supporting process. REPRESENTATIVE KELLY said it is $25. REPRESENTATIVE ROKEBERG asked whether Representative Kelly had considered raising those fees to offset the additional costs. REPRESENTATIVE KELLY replied that he is willing to face the House Finance Committee with a $13,000 fiscal note. REPRESENTATIVE ROKEBERG asked whether that is because he sits on that committee. Number 0867 REPRESENTATIVE JAMES commented that with bills meant to modify social behavior, they always measure the cost to get there but not the cost of the social behavior. Where she sees the real benefit of this legislation is at the time of the decision to marry; it is a huge decision, when here is another option that everyone has been taking. She suggested that making that decision will produce a different end result, and that for a couple who had made that statement, there would be less chance of divorce. She said it seems the social modification would cost less down the road than the current system does. Number 0959 REPRESENTATIVE PORTER agreed with the sponsor that the issue of fees is a finance question that should be dealt with by the House Finance Committee. He said he would like to ask the House Finance Committee to consider that when looking at legal issues in the bills sent to them by the House Judiciary Committee. Representative Porter then informed members that in discussions, he and the sponsor had the same thought about the effect of the bill. It wasn't on any of the post-marriage effects, but rather on the pre-marriage effect that he suggested everybody at the table had gone through. REPRESENTATIVE BERKOWITZ responded, "No." REPRESENTATIVE PORTER explained that if two people decide to marry, they'll discover, if this is law, that they have an option to sign up for A, the no-fault option, or for B, "this regular commitment." He stated, "Now, I don't want to be sexist, but I would guess, looking back at my relationship, my wife would have wanted to sign up for B. And that would have put me on the spot, by golly. I can fortunately say that this year makes 40 years, so it wasn't an issue. But the one thing that bothers me about divorce statistics is that they are somewhat misleading. Knowing as I do the folks at this table, I know that there are at least four that have been married in excess of 20-30 years, which somewhat belies the statistic that four out of five marriages end up in divorce. They don't. Four out of five marriages do, not four out of five people. Some people are on the fourth, fifth, sixth ... marriages. So, this is an option that I think some of those folks need to consider. But, quite frankly, I don't think that the system is totally broke, especially looking at the table we have right here." Number 1135 REPRESENTATIVE ERIC CROFT said a confusing part of the bill for him is the separation from bed and board. In both that section and the actual charter marriage section, there are a number of specific exceptions including abuse. However, if a couple just didn't want to remain married, they would file for a separation from bed and board. He referred to page 7, line 18, and said to do that, they would have had to, under the general provision, been living separately for a year. Then, after a year of living separately had passed after the date of judgment, they would be entitled to a charter divorce, on page 5, lines 6 through 12. He said that is a year plus a year, or 18 months if there are children. REPRESENTATIVE KELLY said that is correct. REPRESENTATIVE CROFT noted that it would be either two or two and a half years of living apart beforehand. He then referred to page 3, lines 4 through 6, and said one thing the couple must recite to each other is that the partners have disclosed to the intended mate all facts that may adversely affect the intended mate's decision to enter into the charter marriage. He commented that it seems a daunting task [there was laughter], then asked: Even if one could do it, what is the redress if one doesn't? What happens for a violation of this section? Number 1258 REPRESENTATIVE KELLY replied that this is the description of a contract, and he doesn't think any government agency will be involved. However, the afflicted party could take it before a judge, just as a businessperson might do if a partner had not disclosed information. He said he doesn't know what the redress would be but assumes it would be a matter for a judge to decide. He asked Representative Croft, "Is that your experience in law?" REPRESENTATIVE CROFT referred to failure to disclose necessary facts, mentioning realtors who are required to do so and that sometimes a contract can be voided. He said if it is a requirement somehow and one fails to disclose it, it might be a remedy. He added, "It would be an odd application here, that is, in addition to the other listing of elements, I could say as an additional way that I get a separation or get a divorce - I get out of this contract - is because of fraud in the inducement or whatever. I mean, I was not disclosed pertinent facts." Number 1361 REPRESENTATIVE BERKOWITZ suggested that if someone failed to disclose a material term, "that they're impossible to live with or that they snore or that ... they're going to develop some loathsome disease," it would seem to void the contract, which puts it into the testamentary zone anyway. REPRESENTATIVE KELLY questioned that, then acknowledged that if one had failed to disclose being an incurable philanderer, the couple would probably divorce for reasons of adultery anyway. He asked, "What if you have a communicable disease? What if you're carrying HIV or some other form of sexually transmitted disease and you fail to disclose that?" REPRESENTATIVE BERKOWITZ responded, "The problem I have with this provision is that you're essentially telling me I've got to go out there and find out certain things. Do I have to go get genetic testing to prove that I'm not a carrier of Tay Sachs? Do I have to go do all these things or else the government's going to peer over my shoulder and tell me that my marriage somehow ... isn't of the same grounds as another marriage where we just promise like we do now?" Number 1455 REPRESENTATIVE PORTER suggested people cannot be accused of failing to disclose something they don't know. REPRESENTATIVE BERKOWITZ replied that there could be an affirmative obligation to go out and get that information. REPRESENTATIVE KELLY said it seems beyond the scope of the bill, and the government isn't going to make a person do anything in here. It is a contract between two people. REPRESENTATIVE BERKOWITZ suggested that if he were to decide on a charter marriage and go through all this, it would be the government telling him how he has to behave, in probably one of the most intimate relationships a person can have. He said, "And to me, you're defining the scope of this relationship. And at core, I'm just really baffled by how someone with a conservative ideology can suggest that the government can describe the parameters of a relationship." REPRESENTATIVE KELLY restated that there is nothing about the government here; it is a contract. Number 1518 REPRESENTATIVE BERKOWITZ countered that it is part of the law, and the law is part of what the state does. He said, "If I and another individual choose to adopt these terms ...." REPRESENTATIVE KELLY interjected, "Choose." REPRESENTATIVE BERKOWITZ responded, "Choose, as individuals. We could do that right now. We're not creating two hierarchies of marriage. And what you're doing is you're saying if someone goes for this charter marriage, they've got to go through all this stuff. And that, to me, is an erosion of personal privacy and personal ... choice." CHAIRMAN GREEN said it is not a requirement but a desire to get involved. Number 1557 REPRESENTATIVE BUNDE asked whether there is a danger of going back to the old Reno, Nevada, divorce and faked adultery, for example, that occurred when getting a divorce was difficult. REPRESENTATIVE KELLY emphasized that it is voluntary, pointing out that under HB 390, people can get separated and divorced but it just isn't quite as easy. He suggested in the old days it was harder than this to get divorced. Number 1640 REPRESENTATIVE CROFT asked how the loathsome disease would be covered. He noted that page 4 lists the bases for a charter divorce, including adultery, a crime against a person, physical abuse, sexual abuse of the child, maltreatment or abandonment, or this bed and board separation. REPRESENTATIVE KELLY said he guessed it was in reference to what Representative Berkowitz had asked regarding the declarations in the beginning, and the discussion of disclosure. REPRESENTATIVE CROFT stated his understanding that it wouldn't be a basis for a divorce but might be a basis for saying, "That was so significant you should have told me, so I get a divorce because you violated section (E) of this disclosure requirement." He asked, "Or would it just not be a basis at all?" REPRESENTATIVE KELLY replied, "You know, the more I look at it, it may not be a basis at all." Number 1701 REPRESENTATIVE CROFT said he was trying to understand it and hadn't made up his mind yet. He suggested it would cut a big hole in this bill if someone could forget about all these other factors and this counseling and the promises, and instead take the quick way out because that person's mate hadn't revealed, for example, that he snores. Representative Croft asked, "On the other hand, 'He never told me he had HIV,' that's not a basis here, and if we don't allow it as an exception there, I've got to live apart for two and a half years before I get a divorce?" REPRESENTATIVE KELLY said as he looks at it, he doesn't think that is a basis. He then asked, "Could you under number (5), Representative Croft?" REPRESENTATIVE CROFT responded, "Maltreatment?" REPRESENTATIVE KELLY noted that it says cruelly, in a manner that impairs the health or endangers the life of a petitioning spouse. He then stated, "If you did not know that you had HIV and you married, and then the couple found out that this happened, to me that falls under the 'for better or worse.' You've got to deal with that, as a couple. If he knew he had HIV and in fact married anyway and had sexual relations with this person without telling them, I guess you could make the claim that this was 'or endangers the life of the petitioning spouse.'" Number 1789 REPRESENTATIVE CROFT responded, "I guess that would be the rub. That's the way I'd read it, that if they had sexual intercourse, that would be a manner that impairs the health or endangers the life of. If you just confess it without that, you've got a two- or two-and-a-half-year wait, probably two in that situation." He recalled a country song titled, "Why Did You Believe Me When I Told You That I Loved You, When You Knew I'd Been a Liar All My Life?" He suggested that goes to this section. Number 1899 REPRESENTATIVE BERKOWITZ referred to the statistics regarding fatherless children and said he was curious how they compared with motherless children and children from unhappy homes where people have stayed together. He said children are important, but there are other principles at stake here. He asked whether perhaps the sponsor isn't a little nostalgic for a time that never really was. REPRESENTATIVE KELLY said there was a time in this country when we performed better in school, when the juvenile crime was much lower, when we didn't have huge welfare rolls, and when honor meant something at the highest levels, which we no longer have. One indicator of that is the high rate of divorce and the absolute disregard for the sacredness of the family. Representative Kelly stated, "Those are important things. If we can set policy and make it voluntary and take this little step, and it's $13,000, I don't see it as a net loss. But if we do take this step, we at least try to do something to stem the tide." Number 1899 REPRESENTATIVE BERKOWITZ responded that there was also a time where life expectancy was 40 years and 90 percent of Americans lived an agrarian lifestyle. He stated, "We have come a long way. And I would submit that what we're seeing here is what happens with freedom. And we hear a lot that freedom isn't always free, and there are costs and consequences to freedom, and part of the consequence is, at least in your estimation of facts, we have a higher divorce rate, and there's some kind of moral decay. And I would not agree necessarily that there [has] been a moral decay. I think there has always been a morally rotten part of this society, and I think there will always be a morally rotten part of this society. I just don't think through government action we can correct that moral deficiency." REPRESENTATIVE KELLY stated his belief that through government action, in a lot of ways, we have created a moral deficiency. "I guess we just have a philosophical disagreement," he added. Number 1937 REPRESENTATIVE JAMES pointed out that this is purely voluntary, indicating she would probably agree with Representative Berkowitz if they were saying this is what people must do. She suggested that only people who have thought marriage though pretty seriously will take the option. REPRESENTATIVE BERKOWITZ commented that marriage itself is a voluntary state. Number 1970 AL ZANGRI, Chief, Vital Statistics, Division of Public Health, Department of Health and Social Services, came forward to testify. He stated, "In general, the department doesn't have a lot of problems with this bill. We, however, do have to oppose it because of the ... Section 1, part (b), which attempts to allow anyone who is already married to opt for a charter marriage. That is not a conceptual problem for anybody, so long as you're married under Alaska law. We have the ability to go back and change an Alaska marriage, to annotate it in any way that we need to, and to make certified copies of that." MR. ZANGRI continued, "We, however, cannot do that to a California marriage or to an Oregon marriage, or any other marriage from any other state. We have no jurisdiction over their records. We have no jurisdiction over their contract terms. As a bureau, we ... would indeed probably find ourselves cut off from the rest of the states if we attempt to do this. If, as this bill calls for, we are to then note the marriage from, say, California, and then make ... any copies of that with that note, we would be unable to do that, at all. One thing, we don't have copies of that California marriage. If they give us a copy of that California marriage, we cannot make a certified copy of it. That California marriage will always exist as an unannotated marriage anywhere, and even if you walk into an Alaska court, you will have your California marriage there. There may be in existence somewhere in our files a declaration, but if they don't ask us for it, and a court never asks us for it, no one will ever see it." Number 2054 REPRESENTATIVE PORTER asked whether people who had been married in California could come to Alaska and reaffirm their vows independently if this were in place. MR. ZANGRI said in general yes, but in a reaffirmation of vows, there is no new license or marriage certificate. REPRESENTATIVE PORTER asked whether they couldn't just generate an original marriage, even though they were married someplace else. MR. ZANGRI replied, "It is possible for someone to go through the entire marriage procedure again. I'm not an attorney. I don't know what the effect of that would be. I do know that then you will have two records of a marriage, one in California, one in Alaska. If you then go to court with those particular certificates, the one that you show is your choice." Mr. Zangri told members the other question that comes up is how Alaska treats covenant marriages from other states, if they get a marriage certificate that comes in here; that is an issue for the courts, not the bureau. However, it is an issue for the bureau when they have to decide how to file or keep records of an out-of-state marriage with a new Alaska annotation to it, because they have a very difficult time doing that legally. Number 2129 REPRESENTATIVE CROFT asked whether now, without this law, people can marry in the normal testament marriage and then sign an agreement, such as in a business partnership, regarding certain conditions such as counseling. He asked, "Do we need this for them to do those terms?" MR. ZANGRI said it is a question for attorneys, but in general, he thinks someone can make any kind of contract with another that is an agreement to do certain things. If one party brings that into court, then there is a contract issue rather than a divorce issue. REPRESENTATIVE KELLY suggested that is just a prenuptial agreement, which has merit. Number 2179 MR. ZANGRI referred to Section 1, part (b). He told members that on page 2, line 1, the department requests an amendment to make that line read, "A couple that is already lawfully married under an Alaska contract ...." Also on page 2, they request that line 12 read, "to a charter marriage. An Alaska marriage ...." He explained that with those two changes to the bill, the department would withdraw its opposition, because they have no problem doing that. REPRESENTATIVE KELLY said he had no objection. Number 2210 REPRESENTATIVE JAMES made a motion to adopt that as an amendment. CHAIRMAN GREEN noted the amendment to add "[A]n Alaska" on page 2, lines 1 and 12. He asked whether there was any objection. Hearing none, he announced that the amendment was adopted. Number 2239 REPRESENTATIVE BERKOWITZ asked whether someone could essentially put together a marriage contract like this without a marriage license. MR. ZANGRI said no. REPRESENTATIVE BERKOWITZ asked why not. MR. ZANGRI explained, "Because under an Alaska statute, you cannot be married without a license after 1964 in Alaska. You can make a contract that says some things, but it's not an Alaska marriage. Alaska ... specifically does not recognize common law marriage." REPRESENTATIVE BERKOWITZ asked, "But in terms of defining the relationship I have with this other person, aside from all the benefits that flow through marriage, I can do it outside of the state." MR. ZANGRI replied, "Certainly." Number 2284 CHAIRMAN GREEN asked whether there were further questions, then announced they would hold HB 390 over until the following Friday. ADJOURNMENT Number 2301 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at 3:29 p.m.