03/14/2008 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB97 | |
| HB50 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 50 | TELECONFERENCED | |
| + | SB 97 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 14, 2008
1:08 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Bob Lynn
Representative Ralph Samuels
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 97(JUD)
"An Act relating to identification seals for certain articles
created or crafted in the state by Alaska Native persons;
relating to the Alaska State Council on the Arts; and making
certain identification seal violations unfair trade practices."
- MOVED HCS CSSB 97(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 50
"An Act relating to the Interstate Compact for the Placement of
Children; establishing an interstate commission for the
placement of children; amending Rules 4 and 24, Alaska Rules of
Civil Procedure; and providing for an effective date."
- MOVED CSHB 50(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 97
SHORT TITLE: ALASKA NATIVE ART IDENTIFICATION SEALS
SPONSOR(S): SENATOR(S) STEVENS
02/26/07 (S) READ THE FIRST TIME - REFERRALS
02/26/07 (S) L&C, FIN
03/08/07 (S) L&C AT 1:30 PM BELTZ 211
03/08/07 (S) Heard & Held
03/08/07 (S) MINUTE(L&C)
03/13/07 (S) L&C AT 1:30 PM BELTZ 211
03/13/07 (S) Moved SB 97 Out of Committee
03/13/07 (S) MINUTE(L&C)
03/14/07 (S) L&C RPT 4DP
03/14/07 (S) DP: ELLIS, BUNDE, DAVIS, STEVENS
03/21/07 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/21/07 (S) Moved SB 97 Out of Committee
03/21/07 (S) MINUTE(FIN)
03/21/07 (S) FIN RPT 7DP
03/21/07 (S) DP: HOFFMAN, STEDMAN, ELTON, THOMAS,
DYSON, HUGGINS, OLSON
03/26/07 (S) JUD REFERRAL ADDED
04/02/07 (S) JUD AT 1:30 PM BELTZ 211
04/02/07 (S) Moved CSSB 97(JUD) Out of Committee
04/02/07 (S) MINUTE(JUD)
04/04/07 (S) JUD RPT CS 1DP 4NR SAME TITLE
04/04/07 (S) DP: FRENCH
04/04/07 (S) NR: MCGUIRE, HUGGINS, WIELECHOWSKI,
THERRIAULT
04/11/07 (S) BEFORE SENATE IN THIRD READING
04/11/07 (S) TRANSMITTED TO (H)
04/11/07 (S) VERSION: CSSB 97(JUD)
04/13/07 (H) READ THE FIRST TIME - REFERRALS
04/13/07 (H) EDT, HES, JUD
05/01/07 (H) EDT AT 5:15 PM CAPITOL 106
05/01/07 (H) Heard & Held
05/01/07 (H) MINUTE(EDT)
05/08/07 (H) HES AT 3:00 PM CAPITOL 106
05/08/07 (H) Scheduled But Not Heard
05/11/07 (H) JUD AT 1:00 PM CAPITOL 120
05/11/07 (H) <Bill Hearing Canceled>
02/21/08 (H) EDT AT 11:00 AM CAPITOL 106
02/21/08 (H) Moved Out of Committee
02/21/08 (H) MINUTE(EDT)
02/25/08 (H) EDT RPT 7DP
02/25/08 (H) DP: DOOGAN, GATTO, DOLL, LYNN,
JOHANSEN, KELLER, NEUMAN
02/25/08 (H) HES REFERRAL WAIVED
03/14/08 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 50
SHORT TITLE: CHILD PLACEMENT COMPACT
SPONSOR(S): REPRESENTATIVE(S) COGHILL, NEUMAN, WILSON
01/16/07 (H) PREFILE RELEASED 1/5/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) HES, JUD
02/21/08 (H) HES AT 3:30 PM CAPITOL 106
02/21/08 (H) Heard & Held
02/21/08 (H) MINUTE(HES)
02/28/08 (H) HES AT 3:00 PM CAPITOL 106
02/28/08 (H) Moved CSHB 50(HES) Out of Committee
02/28/08 (H) MINUTE(HES)
02/29/08 (H) HES RPT CS(HES) 6DP 1NR
02/29/08 (H) DP: CISSNA, FAIRCLOUGH, GARDNER,
SEATON, ROSES, WILSON
02/29/08 (H) NR: KELLER
03/14/08 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
TIM LAMKIN, Staff
to Senator Gary Stevens
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented Version N of SB 97, on behalf of
the sponsor, Senator Stevens.
BENJAMIN BROWN, Chair
Alaska State Council on the Arts (ASCA)
Department of Education and Early Development (EED)
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 97.
L. SAUNDERS McNEILL, Director
Community and Native Arts Program
Alaska State Council on the Arts (ASCA)
Department of Education and Early Development (EED)
Anchorage, Alaska
POSITION STATEMENT: Testified on SB 97.
DONALD C. MITCHELL, Attorney at Law
Anchorage, Alaska
POSITION STATEMENT: Testified on SB 97.
DAN BRANCH, Senior Assistant Attorney General
Commercial/Fair Business Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Testified on SB 97.
RYNNIEVA MOSS, Staff
to Representative John Coghill
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified on HB 50 on behalf of joint prime
sponsor Representative Coghill.
MARCIA PICKERING, Deputy Compact Administrator
Office of Children's Services (OCS)
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Testified on HB 50.
JAN RUTHERDALE, Senior Assistant Attorney General
Child Protection Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Testified on HB 50.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:08:10 PM. Representatives Coghill,
Holmes, Dahlstrom, and Ramras were present at the call to order.
Representative Gruenberg arrived as the meeting was in progress.
Representatives Lynn and Samuels were excused.
SB 97 - ALASKA NATIVE ART IDENTIFICATION SEALS
1:08:27 PM
CHAIR RAMRAS announced that the first order of business would be
CS FOR SENATE BILL NO. 97(JUD), "An Act relating to
identification seals for certain articles created or crafted in
the state by Alaska Native persons; relating to the Alaska State
Council on the Arts; and making certain identification seal
violations unfair trade practices."
1:08:45 PM
REPRESENTATIVE DAHLSTROM moved to adopt the proposed House
committee substitute (HCS) for SB 97(JUD), Version 25-LS0405\N,
Bannister, 3/14/08, as the work draft. There being no
objection, Version N was before the committee.
1:08:57 PM
TIM LAMKIN, Staff to Senator Gary Stevens, Alaska State
Legislature, on behalf of Senator Stevens, sponsor, relayed that
SB 97 is a branding program similar to the Made in Alaska
program, but it is narrowly focused on Alaska Native art. Mr.
Lamkin offered that he previously met with individual members
and Version N attempts to address their concerns. He referred
to page 4, lines 6-8, proposed AS 45.65.070(1), which adds
language, "a work of art that is created or crafted" in order to
clarify that the art in question are "objects that are touched
by the artist to become the art." Further, this paragraph
stresses that the article of art is "created or crafted" in the
state, in order to clarify that the art has not been
manufactured elsewhere but rather has been made in the state.
MR. LAMKIN referred to page 4, line 14, proposed
AS 45.65.070(6), which adds "enrolled member" thus excluding
those non-Native persons who are formally adopted into a tribe.
He stated that when a person is ceremonially adopted into a
tribe, although it is an honor, it does not entitle the person
to the benefits of an "enrolled" tribal member. He referred to
page 4, lines 26-30, proposed AS 45.65.070(9), specifically to
the definition of "original", and stated that the sponsor
struggled with that definition. A prior version of SB 97
referred to "offset print" and yet "original" would exclude
"mechanized duplication instruments". He noted that the use of
"offset print" created a conflict since "offset print" is
created by "mechanized duplication instruments." He stated that
"offset print" was deleted and the definition was clarified by
further defining "original." He read a portion of proposed
AS 45.65.070(9):
... except that "original" includes etched prints,
lithographic prints, serigraphic prints, and prints
from photographs, if the prints are made by hand by
the person who created or crafted the etched plate,
etched drawing, etched design, lithographic plate,
lithographic stone, silkscreen, or photograph from
which the prints were made;"
MR. LAMKIN referred to proposed AS 45.65.070(10), to the
definition of "work of art" which includes subparagraphs (A)-(E)
and is connected by "or" to clarify that this is not exclusive,
that the art includes the subparagraphs, but is not limited to
those items.
REPRESENTATIVE DAHLSTROM inquired as to the reason for the bill,
the attorney general's interest in SB 97, and clarification of
adopted versus enrollment. She relayed her understanding that
an adopted child would never be eligible to participate in the
program and use the emblem or seal.
MR. LAMKIN noted that currently an "Alaska Native" means, "any
resident Eskimo, Aleut, or Indian possessing not less than one-
quarter Eskimo, Aleut, or Indian blood." The bill proposes to
change that definition and strike reference to blood quantum as
the criterion, and would suggest that an Alaska Native is a
resident who is a member of an Alaska Native tribe. If a person
is a member of an Alaska Native tribe, he/she is also a member
of an "Indian Tribe" as defined by federal law, and would be
eligible for the Silver Hand program. He referred to a
flowchart in members packets labeled, "Senate Bill 97,
Eligibility to Use the Silver Hand. He pointed out that this
flow chart only determines eligibility and is separate from
other issues such as sovereignty or gaming. As currently
drafted, the bill is meant to preclude the raising of federal
sovereignty issues.
1:17:59 PM
MR. LAMKIN referred to the issue of equal protection, and posed
a scenario in which a non-Native person has grown up in a rural
community, such as Egegik, and is an accomplished artist,
familiar with traditional art. That person could appeal to the
Alaska State Council on the Arts (ASCA) if he/she was denied use
of the Silver Hand seal. He related his understanding that a
series of tests are made when equal protection issues come
before the court, and offered his belief that one remedy would
be to reference the Made in Alaska program, and another remedy
could be that the Silver Hand program could be expanded to offer
more than one type of seal. He opined that the Silver Hand seal
is reserved for Native artists, but another type of seal could
be devised for non-Native artists.
REPRESENTATIVE DAHLSTROM stated that she did not understand the
need to separate out Native and non-Native artists and the need
for the bill.
CHAIR RAMRAS offered that in operating a hotel that contains a
gift shop, he has unsuccessfully marketed items for over $200.
Subsequently, when unsolicited Native-crafts persons come to his
shop with baleen, sculptures, and other handcrafted artwork, he
said that he has declined to purchase them because the price is
too high for his market and his shop cannot create the
distinction in any meaningful way that denotes that the product
is authentic, rather than a cheap, imported "knock off" product.
He opined that the Silver Hand program would be beneficial for
his hotel gift shop to offer authentic Native art.
1:23:08 PM
MR. LAMKIN noted that the Silver Hand program is not a new law
and has been in statute for over 45 years in some form.
However, fraud has been prevalent and this has ruined the
integrity of the program. The ASCA has assisted in writing a
bill to help rebuild the integrity of the Silver Hand program,
which not only assists artists, but helps the state in its
marketing efforts, and helps ensure that the consumer obtains
authentic Native art made in Alaska.
REPRESENTATIVE GRUENBERG offered that he strongly supports the
Silver Hand program and considers SB 97 to be a good bill.
REPRESENTATIVE COGHILL asked whether there will be any changes
to the fees.
MR. LAMKIN relayed his understanding that the fees are not cost
prohibitive and are currently set at $10 annually, which covers
the cost of printing the stickers.
REPRESENTATIVE COGHILL noted that the certification gives
authenticity to Native arts. He opined that the case could be
made that this is legitimate, especially since federal law
grants Natives exclusive rights to some raw materials. He asked
whether that might place tension in the community for Native
Alaskans not living in Alaska.
MR. LAMKIN stated the whole purpose of the program is to ensure
that the products are made in Alaska, and currently that is the
state boundary. He questioned how to authenticate Alaska Native
products if they are not made in the state.
REPRESENTATIVE COGHILL offered that simply being enrolled might
be sufficient regardless of the residence. He stated that he
would not hold up SB 97 solely for that reason.
MR. LAMKIN pointed out that to be eligible, the person must be a
resident of Alaska, and that that residency is linked with the
eligibility to obtain a Permanent Fund Dividend (PFD). He posed
a scenario in which a student in Washington state returns home
on spring break and creates his/her art. He offered that it
would be legitimate to take that art and sell it in another
state.
CHAIR RAMRAS characterized the bill as one of self-reliance.
1:30:15 PM
BENJAMIN BROWN, Chair, Alaska State Council on the Arts (ASCA),
characterized SB 97 as a good program. Passage of SB 97 will
make it a better program, with less fraud, he opined, and
pointed out that the attorney general's office acts as the
enforcement arm for consumer protection. He offered, in
response to Representative Dahlstrom's earlier question, that
tribal adoption refers to a person's honorary adoption to a
tribe rather than a family adoption. He surmised that if a
family adopted a child, that child would likely become enrolled
and be eligible for any corporate shares. He urged the
committee to support SB 97.
REPRESENTATIVE GRUENBERG asked whether the main purpose of the
Act is to prevent fraud.
MR. BROWN stated that the main purpose of SB 97 is to promote
the creation and sale of Alaska Native art. He further stated
that the art will be available and enjoyed for its own intrinsic
purposes, and also that the economic benefits of creating that
art flows back to Alaska Natives in their communities. He noted
that fraud prevention is an essential part of that main purpose.
REPRESENTATIVE GRUENBERG surmised that it is the Silver Hand
emblem or seal that makes the "authentic art" readily apparent
to the public.
MR. BROWN agreed.
REPRESENTATIVE GRUENBERG opined that the promotion of this
particular type of art and the prevention of fraud are valid
state interests, and support the mechanism of the program.
MR. BROWN offered his understanding that potential equal
protection issues are more than addressed by the existence of
the Made in Alaska program. The ASCA can at some future time
assess that program and possibly even expand it or create a new
program. He said he is confident that the bill is
constitutional and it's aimed at promoting the production and
sale of Alaska Native Art for the benefit of those producing it,
those selling it, and those buying it knowing that the products
are authentic.
REPRESENTATIVE GRUENBERG asked Mr. Brown whether he was
referring to the Silver Hand program.
MR. BROWN said he was.
REPRESENTATIVE GRUENBERG asked Mr. Brown whether he thought that
the Silver Hand program would withstand another potential
challenge based on privileges and immunities.
MR. BROWN indicated that he did.
1:36:24 PM
L. SAUNDERS McNEILL, Director, Community and Native Arts
Program, Alaska State Council on the Arts (ASCA), stated that
hundreds of permit holders are currently in the program, and
that the program has the largest number of permit holders, along
with "Alaska Grown" and "Made in Alaska". Senate Bill 97
represents 20 years of feedback from Alaska Native artists
through requests, recommendations, and surveys, and Alaska
Native artists exclusively comprise the Silver Hand Task Force,
formed for the purpose of working on this legislation. She
expressed gratitude to the committee for considering the bill
and supporting it. In response to a comment, she concurred that
the seals inform the public that the product they are acquiring
is authentic.
1:38:31 PM
DONALD C. MITCHELL, Attorney at Law, stated that for a number of
years he has advised the legislature on legal issues related to
Alaska Natives. He referred to a March 29, 2007, memorandum
that he wrote, and said he believes that the Silver Hand program
is a terrific program that has unintentionally gotten entangled
in a complicated legal dispute. When people come to visit
Alaska, their experience is unique from what they have in other
states in that some of Alaska's Native population still lead a
traditional lifestyle, which is reflected in their art.
Visitors want to own art that they know was made by an Alaska
artist rather than by someone in China. In 1961 the legislature
created the Silver Hand Program to help consumers know what was
being represented to them. That was a simpler time, though, and
statute provided that those who would be eligible to use the
sticker on their art were artists with a certain blood quantum
signifying that they were Native Alaskans.
MR. MITCHELL suggested that SB 97 instead places people in the
middle of a classification system that has nothing to do with
the program, but has huge implications elsewhere such as
possibly violating the Alaska State Constitution's equal
protection clause, or further confusing the unsettled federal
legal dispute regarding whether Alaska Natives in rural
communities are members of federally-recognized tribes whose
governing bodies have authority that could supersede the
authority of the legislature and provide them with sovereign
immunity. He referred to the February 22, 2008, decision issued
by Judge Tim Burgess in the Kaltag v. State of Alaska adoption
case, in which the tribal court had completed an adoption but
the state would not issue the child's birth certificate; the
U.S. District Court for the District of Alaska upheld the tribal
court's adoption. He offered his belief that legislators do not
want to make any such issues worse, and remarked that his
memorandum accurately identifies those issues.
1:47:09 PM
REPRESENTATIVE COGHILL asked whether using the term, "enrolled"
addresses the issue.
MR. MITCHELL said he thought that if the group that is being
used in the classification system is itself otherwise
constitutionally appropriate, then the state has an interest in
ensuring that someone who purports to be a member of that group
actually is. He indicated that using that term would provide an
appropriate additional safeguard. However, the larger question
is how to define a group of artists entitled to use this seal in
a constitutionally appropriate way without getting further
entangled in sovereignty issues.
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
MR. MITCHELL, noting that Congress has the authority to
designate groups of Native Americans as "tribes" for some
purposes such as for the specific purpose of delivering federal
services and programs or recognizing sovereign immunity, he said
that this bill seems to be a reasonable compromise that will
pass constitutional muster.
REPRESENTATIVE COGHILL opined that [language in the bill] gives
applicants a "clear line" in the application process for the
Silver Hand program.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
MR. MITCHELL, in response to a question, offered his
understanding that one of the programs and services provided to
people who qualify as members of tribes through the Indian Self-
Determination and Education Assistance Act are for health
benefits. He pointed out that the Indian Health Care
Improvement Act also provides services. He offered his
understanding that it will be possible to determine, on an
individual basis, whether an artist is enrolled in a tribe that
would qualify them for the Silver Hand program.
1:56:02 PM
MR. LAMKIN referred to the Alaska Federation of Natives (AFN)
Resolution 07-35, specifically item 5 on page 2, which read
[original punctuation provided]:
To be eligible for the program, we support a
requirement that the individual is 1) an Alaska Native
and an enrolled member of an Alaska Native tribe; or,
2) an enrolled member of Alaska Native Corporation;
MR. LAMKIN stated that the word "enrolled" creates the
distinction between an Alaska Native and a member who has been
ceremonially adopted by the tribe.
REPRESENTATIVE COGHILL said he is content with the current
language of Version N.
REPRESENTATIVE GRUENBERG asked Mr. Mitchell whether he agrees
with the purposes of the bill, and, if so, whether he thinks
that the program can withstand an equal protection challenge.
MR. MITCHELL indicated that he agrees with the purposes of the
program, and opined that an equal protection issues exists
regarding the classification that distinguishes Alaska Native
artists from other artists. Assuming that it is constitutional
to have such a classification, a second question is whether the
legislature has the authority to have a program such as the
Silver Hand program. In his view, it is more certain that the
legislature's constitutional authority for the program is much
stronger than its authority to create the classification system.
MR. MITCHELL surmised that if the legislature were to enact a
statute that said that the only art that can be sold in Alaska
is art that carries the seal, then a constitutional commerce
clause problem might be raised. However, that is not what SB 97
and this program provide for; instead they only provide that the
only artist who is eligible to sell art bearing the Silver Hand
emblem or seal must meet particular criteria such that the
person must have status as a member of an Indian tribe as
defined by statute, and must manufacture the art in the state.
He related that he is quite comfortable that the committee is on
solid ground. While the standards for identifying class
membership are on less solid ground, under the circumstances,
the bill's sponsor has done the best job possible that is fair
and reduces the constitutional and political problems, he
opined.
REPRESENTATIVE GRUENBERG concurred.
MR. MITCHELL surmised that this bill could almost be considered
part of the consumer protection statutes.
2:06:20 PM
DAN BRANCH, Senior Assistant Attorney General, Commercial/Fair
Business Section, Civil Division (Juneau), Department of Law
(DOL), pointed out that the Silver Hand program is contained in
current law, and opined that replacing the blood quantum
requirement with membership in a tribal organization will help
to alleviate problems. With respect to the Alaska State
Constitution, the Alaska Supreme Court has identified a higher
level protection than under the federal Constitution. He
indicated that although no guarantees exist with respect to the
constitutionality of the bill, he would be willing to defend the
Silver Hand program. He stated that the Alaska Supreme Court
would first examine whether someone is being damaged by the
classification. If one reads the bill as discriminating between
Alaska Native artists and non-Native artists, there is a fairly
high standard of proof required to show that it is
constitutional. However, what this bill does is prevent someone
from committing fraud on the public by placing a Silver Hand
seal on a piece of art when he/she doesn't have a right to do
that. He opined that the only possible interest such a person
would have is to defraud the public.
MR. BRANCH said that if SB 97 is a consumer protection bill, it
will also protect the artist from unfair competition, and the
standard of proof is much easier to meet. Another thing that
the Alaska Supreme Court will examine is whether the provisions
of the bill will serve the constitutional purpose of preventing
fraud. He opined that the bill does so by making it easier for
the state to police the action of artists by requiring that only
those that are entitled to use the program can place the Silver
Hand seal on their art.
MR. BRANCH, in response to Representative Gruenberg, remarked
that 25 U.S.C. 305(e) prohibits anyone from directly or
indirectly offering something in a manner that falsely suggests
that it is Indian produced or a product of a particular Indian
tribe. He highlighted that a U.S. District court in Illinois
identified that the purposes of that federal law is to protect
Indian artists from unfair competition and to protect consumers
from unknowingly purchasing imitation products. He said that he
thinks those also appear to be the purposes of [SB 97].
REPRESENTATIVE DAHLSTROM said she supports the intent of the
bill, but has concern that it will also affect Office of
Children's Services (OCS) issues and gaming issues.
MR. BRANCH answered that SB 97 would not affect the child in
need of assistance (CINA) issues. That the issue was raised
last year, and as a result of that, the bill was amended to
change how a "tribe" is defined. Currently the bill uses a
sovereignty-neutral definition from another federal Act. For
that reason, no one can say that Alaska artists who participate
in the Silver Hand program are therefore part of an Alaska tribe
that should receive federal recognition.
2:13:42 PM
REPRESENTATIVE GRUENBERG referred to proposed AS 45.65.070(10),
which defines the term, "work of art", and characterized the
list included as a "moving target" since both the methods of
creation and the materials used changes vastly over time. He
stated that traditionally sculptors would carve in stone or
wood, or model in clay. However, modern materials include
acrylic and other materials that were unknown 10 or 15 years
ago. He relayed his understanding that SB 97 would allow Native
artists to create modern works of art and handicrafts, rather
than limit them to traditional materials, so long as the art is
not mass produced. He suggested that the ASCA be granted
regulatory authority to allow the definition to reflect all
materials used in works of art over time.
REPRESENTATIVE GRUENBERG referred to an amendment in members'
packets labeled 25-LS0405\N.1, Bannister, 3/14/08, which read:
Page 3, following line 1:
Insert a new bill section to read:
"* Sec. 5. AS 45.65.020 is amended by adding a new
subsection to read:
(c) The council shall adopt regulations defining
"work of art" for AS 45.65.010 - 45.65.070."
Renumber the following bill sections accordingly
Page 4, line 31, through page 5, line 9:
Delete all material and insert:
"(10) "work of art" has the meaning given by the
council under AS 45.65.020(c)."
REPRESENTATIVE GRUENBERG also referred to a memorandum from the
drafter dated March 14, 2008, that with regard to the amendment
in part read [original punctuation provided]:
Delegation of authority. Please be aware that
delegating to the Alaska State Council on the Arts the
definition of "work of art" for AS 45.65.010 -
45.65.070, raises the issue whether the delegation
amounts to an unlawful delegation of legislative power
to the Council. The reasons are (1) that "work of
art" is a very important term for those sections and
will significantly affect the application of those
sections, and (2) that the bill does not give the
Council any guidelines for the Council to follow when
defining the term.
REPRESENTATIVE GRUENBERG stated that it is clear that the bill's
definition of "work of art" does not include performing arts,
but rather visual arts such as paintings and sculptures. He
suggested that the definition should include the following
language:
A "work of art" is a visual article that has the
meaning given by the council
2:18:25 PM
MS. McNEILL offered that she reviewed the suggested definition
and spoke with the ASCA's legal counsel, and the ASCA believes
that the existing definitions are sufficient for the Silver Hand
Program.
REPRESENTATIVE GRUENBERG maintained his concern that the
definitions may not be adequate in the future.
MR. LAMKIN offered his preference for the definition as
currently drafted in Version N.
CHAIR RAMRAS, after determining that no one else wished to
testify, closed public testimony on SB 97.
2:21:18 PM
REPRESENTATIVE GRUENBERG relayed that he would not be offering
his proposed amendment at this time since he believes the
sponsor would not approve of it.
REPRESENTATIVE DAHLSTROM moved to report the proposed House
committee substitute (HCS) for SB 97, Version 25-LS0405\N,
Bannister, 3/14/08, out of committee with individual
recommendations and the accompanying fiscal notes. There being
no objection, HCS CSSB 97(JUD) was reported from the House
Judiciary Standing Committee.
HB 50 - CHILD PLACEMENT COMPACT
2:21:49 PM
CHAIR RAMRAS announced that the final order of business would be
HOUSE BILL NO. 50, "An Act relating to the Interstate Compact
for the Placement of Children; establishing an interstate
commission for the placement of children; amending Rules 4 and
24, Alaska Rules of Civil Procedure; and providing for an
effective date." [Before the committee was CSHB 50(HES).]
REPRESENTATIVE COGHILL, speaking as one of the joint prime
sponsors of HB 50, related that the bill addresses the
Interstate Compact for the Placement of Children (ICPC) that was
originally formulated in [1960]. The compact language and rules
adopted by the interstate commission for the placement of
children relinquish state's rights and supersede state law. He
opined that Alaska has been instrumental in improving the
compact and bringing it into the 21st century. He related that
some of the changes surround issues pertaining to home visits
and grandparents. He characterized HB 50 as a good bill.
2:26:02 PM
RYNNIEVA MOSS, Staff to Representative John Coghill, Alaska
State Legislature, on behalf of Representative Coghill, one of
the joint prime sponsors of HB 50, opined that Alaska has gained
a good reputation in working with other states in the placement
of children. She stated that Representative Coghill has been
interested in the issues surrounding the placement of children
in part due to discussions held with former Judge Niesje J.
Steinkruger who described the difficulty in placing children
with a parent residing in another state.
MS. MOSS explained that under HB 50, the state would not be
involved in home studies and other bureaucratic "red tape" when
placing a child with a parent if the child is not in state
custody. It also removes the applicability of the compact in
instances in which the child is placed in residential treatment
in the Lower 48 by his/her parents. Ms. Moss noted that HB 50
would change the background checks necessary for placing
children with relatives from a thorough background investigation
and home study to requiring only an assessment, which will
eliminate unnecessary delays in placing the child.
2:28:11 PM
MARCIA PICKERING, Deputy Compact Administrator, Office of
Children's Services (OCS), Department of Health and Social
Services (DHSS), relayed that for the last four years she has
served on the executive committee for the National Association
of ICPC Administrators. She offered that during the past year
she has been heavily involved in rewriting the new compact. She
noted that the ICPC was written in 1959 and adopted by New York
in 1960, but did not go into effect until 15 years later, with
Alaska joining in 1976.
MS. PICKERING stated that the concept behind the new compact is
to provide uniformity in the process and accountability. She
opined that the old ICPC did not have any accountability or
enforcement of reciprocity to ensure that each state is not
charged by another state for the services provided. The changes
in the ICPC will lessen the time it takes to place a child,
while still ensuring that the home is safe for the child. She
highlighted that the ICPC has been endorsed by executive
committees of the National Council of Human Services, Public
Child Welfare Administrators, the executive committee of the
ICPC, and the American Academy of Adoption Attorneys.
MS. PICKERING continued that the new ICPC provides for
administrative rule-making enforcement; penalties for the
"sending state" for an illegal placement, but not for initiating
activity in the "receiving state"; for supervision services; for
guidelines for tribal governments that will include tribal
government participation in the development of those guidelines;
and will create an option for purchasing services such as home
studies and supervision from private agencies not previously
accepted by states.
MS. PICKERING said that two types of home studies will be
authorized, a "home study" and an "assessment." She noted that
the assessment will be an abbreviated version, and this will
help to provide placement. Although a relative would still be
required to submit to a home study, the initial placement could
happen much more quickly. The new ICPC would allow for
provisional approvals and will allow selection of either the
"sending" or "receiving" state's law; with regard to the U.S.
Armed Services, this will make that a much smoother transition
when determining which jurisdiction has precedence. She offered
that the new ICPC will require a state advisory committee.
MS. PICKERING stated that the executive branch, judiciary
branch, and the legislative branch will oversee and advise the
agency that will carry out the compact. This bill deletes
applicability to private-parent placements, to avoid private
family business, and would exempt the compact in instances of
private family placements with relatives and non-relatives when
it will not result in an adoption. She related an example of a
mother who sends a child to live with her friend while she
attends school; HB 50 will make it clear that the decision to
send the child to live with the friend is solely the mother's
decision.
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
2:35:03 PM
MS. PICKERING, in response to Vice Chair Dahlstrom, answered
that this new compact would apply to members of the armed
forces. She added that applicability with regard to foreign
adoptions has been deleted because the federal government is
regulating activities through the visa process and adoption
agencies must facilitate the adoption. Thus, the necessity for
the states to be involved is eliminated.
REPRESENTATIVE GRUENBERG referred to page 28, lines 1-6, , which
gives the Interstate Commission on the Placement of Children the
right to intervene in a judicial proceeding pertaining to the
ICPC, and asked whether this is permissive intervention or
mandatory intervention.
2:37:51 PM
JAN RUTHERDALE, Senior Assistant Attorney General, Child
Protection Section, Civil Division (Juneau), Department of Law
(DOL), stated that the bill does not say, but her assumption is
that it is a permissive intervention.
REPRESENTATIVE GRUENBERG opined that the language on page 28,
line 2, ought to clarify that the court rule being amended is
Rule 24(b) of the Alaska Rules of Civil Procedure, in order to
be clear that Rule 24(a) is not being amended.
MS. PICKERING said that the intent is to allow the ICPC, if
invited, to testify to the rules, regulations, and any mediation
in a case that necessitated court intervention. She pointed out
that if a lawsuit occurs between two states, it will be in
federal court, and the ICPC may petition to be a party.
REPRESENTATIVE COGHILL referred to the term, "entitled" which he
opined would provide the DOL the right to have a standing in the
matter.
REPRESENTATIVE GRUENBERG referred to page 22, lines 19-25,
paragraph, which read:
(4) The Interstate Commission shall be entitled to
receive service of process in any action in which the
validity of a compact provision or rule is the issue
for which a judicial determination has been sought and
shall have standing to intervene in any proceedings.
Failure to provide service of process to the
Interstate Commission shall render any judgment, order
or other determination, however so captioned or
classified, void as to the Interstate Commission, this
compact, its bylaws or rules of the Interstate
Commission.
REPRESENTATIVE GRUENBERG pointed out that this paragraph
provides for the ICPC to receive notice, which he stressed is a
different issue than focusing on what action the ICPC will take
once it receives the notice. The purpose of this paragraph, he
opined, is to provide the commission notice so that it could
file a motion to intervene if it so desires. Representative
Gruenberg again asked whether the ICPC has a right to intervene
and, if so, if it is permissive or mandatory, particularly given
that the aforementioned Rule 24 covers both. He opined that the
ICPC should have the right to intervene, but that it should only
be permissive with the court.
MS. RUTHERDALE agreed.
2:41:34 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 1, to insert "(b)" on page 28, line 2, after "Rule
24".
REPRESENTATIVE COGHILL stated that his intent to allow the state
to challenge the validity of the placement under the compact.
He indicated that he would be amenable to Conceptual Amendment 1
as long as it results in an accurate reference.
VICE CHAIR DAHLSTROM asked whether there were any objections to
Conceptual Amendment 1. There being none, Conceptual
Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG asked whether the aforementioned
language on page 22, lines 19-25, is typical such that when the
validity of a compact provision or rule is challenged, that the
commission shall be given the right of process.
MS. PICKERING answered that the drafters consulted with a couple
of national organizations that specialize in compacts and
determined that this language is uniform.
REPRESENTATIVE GRUENBERG referred to a letter in members'
packets from the American Academy of Adoption Attorneys dated
January 14, 2008. He opined that this group is the premier
group of adoption attorneys in the country.
MS. PICKERING, in response to Representative Gruenberg, answered
that the estimated three months to a year to complete home
studies and to arrive at placement decisions will be cut
dramatically under HB 50.
REPRESENTATIVE GRUENBERG opined that from a child's point of
view and sense of time, that reduced time represents a
tremendous savings.
VICE CHAIR DAHLSTROM, after first determining no one else wished
to testify, closed public testimony on HB 50.
2:46:06 PM
REPRESENTATIVE COGHILL moved to report CSHB 50(HES), as amended,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
50(JUD) was reported from the House Judiciary Standing
Committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:46 p.m.
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