03/27/2015 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB75 | |
| HB106 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 106 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 75 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 27, 2015
1:02 p.m.
MEMBERS PRESENT
Representative Gabrielle LeDoux, Chair
Representative Wes Keller, Vice Chair
Representative Bob Lynn
Representative Charisse Millett
Representative Matt Claman
Representative Neal Foster
Representative Max Gruenberg
MEMBERS ABSENT
Representative Kurt Olson (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 75
"An Act relating to the regulation of marijuana by
municipalities; and providing for an effective date."
- MOVED CSHB 75(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 106
"An Act relating to the Uniform Interstate Family Support Act,
including jurisdiction by tribunals of the state, registration
and proceedings related to support orders from other state
tribunals, foreign support orders, foreign tribunals, and
certain persons residing in foreign countries; relating to
determination of parentage of a child; and providing for an
effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 75
SHORT TITLE: MARIJUANA ESTAB. REG; LOCAL ELECTION
SPONSOR(s): COMMUNITY & REGIONAL AFFAIRS
01/23/15 (H) READ THE FIRST TIME - REFERRALS
01/23/15 (H) CRA, JUD
02/21/15 (H) CRA AT 10:00 AM BARNES 124
02/21/15 (H) -- MEETING CANCELED --
02/24/15 (H) CRA AT 8:00 AM BARNES 124
02/24/15 (H) Heard & Held
02/24/15 (H) MINUTE(CRA)
03/03/15 (H) CRA AT 8:00 AM BARNES 124
03/03/15 (H) Moved CSHB 75(CRA) Out of Committee
03/03/15 (H) MINUTE(CRA)
03/05/15 (H) CRA AT 8:00 AM BARNES 124
03/05/15 (H) Moved CSHB 75(CRA) Out of Committee
03/05/15 (H) MINUTE(CRA)
03/06/15 (H) CRA RPT CS(CRA) NT 3DP 3NR
03/06/15 (H) DP: NAGEAK, SEATON, TILTON
03/06/15 (H) NR: DRUMMOND, REINBOLD, HUGHES
03/11/15 (H) JUD AT 1:00 PM CAPITOL 120
03/11/15 (H) Heard & Held
03/11/15 (H) MINUTE(JUD)
03/18/15 (H) JUD AT 1:00 PM CAPITOL 120
03/18/15 (H) <Bill Hearing Canceled>
03/25/15 (H) JUD AT 1:00 PM CAPITOL 120
03/25/15 (H) <Bill Hearing Canceled>
03/27/15 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 106
SHORT TITLE: UNIFORM INTER.CHILD SUPPORT;PARENTAGE
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/11/15 (H) READ THE FIRST TIME - REFERRALS
02/11/15 (H) STA, JUD
02/19/15 (H) STA AT 8:00 AM CAPITOL 106
02/19/15 (H) Heard & Held
02/19/15 (H) MINUTE(STA)
03/03/15 (H) STA AT 8:00 AM CAPITOL 106
03/03/15 (H) Heard & Held
03/03/15 (H) MINUTE(STA)
03/05/15 (H) STA AT 8:00 AM CAPITOL 106
03/05/15 (H) -- MEETING CANCELED --
03/10/15 (H) STA AT 8:00 AM CAPITOL 106
03/10/15 (H) Heard & Held
03/10/15 (H) MINUTE(STA)
03/17/15 (H) STA AT 8:00 AM CAPITOL 106
03/17/15 (H) Moved CSHB 106(STA) Out of Committee
03/17/15 (H) MINUTE(STA)
03/18/15 (H) STA RPT CS(STA) 4DP 3NR
03/18/15 (H) DP: TALERICO, STUTES, VAZQUEZ, KREISS-
TOMKINS
03/18/15 (H) NR: KELLER, GRUENBERG, LYNN
03/27/15 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE CATHY TILTON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During the hearing on CSHB 75, thanked
Chair LeDoux for working with her on the committee substitute
and turned testimony over to her aide.
HEATH HILYARD, Staff
Representative Cathy Tilton
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented CSHB 75 on behalf of the House
Community and Regional Affairs Committee, sponsor by request,
chaired by Representative Tilton.
DENNIS WHEELER, Municipal Attorney
Legal Department
Municipality of Anchorage
Anchorage, Alaska
POSITION STATEMENT: During the hearing of CSHB 75 answered
questions and offered support for the bill.
AMY MEAD, Assistant Municipal Attorney
Law Department
City and Borough of Juneau
Juneau, Alaska
POSITION STATEMENT: During the hearing of CSHB 75 answered
questions and offered support for the bill.
CAROL BEECHER, Deputy Director
Anchorage Central Office
Child Support Division
Department of Revenue
Anchorage, Alaska
POSITION STATEMENT: Presented CSHB 106 on behalf of the House
Rules Committee, sponsor by request, of the Governor.
STACY STEINBERG, Chief Assistant Attorney General
Statewide Section Supervisor
Collections and Support Section
Civil Division
Anchorage, Alaska
POSITION STATEMENT: During the hearing of CSHB 106 offered a
sectional analysis of the bill and answered questions.
ACTION NARRATIVE
1:02:27 PM
CHAIR GABRIELLE LEDOUX called the House Judiciary Standing
Committee meeting to order at 1:02 p.m. Representatives Keller,
Lynn, Millett, Claman, and LeDoux were present at the call to
order. Representatives Gruenberg and Foster arrived as the
meeting was in progress.
HB 75-MARIJUANA ESTAB. REG; LOCAL ELECTION
1:02:55 PM
CHAIR LEDOUX announced that the first order of business would be
HOUSE BILL NO. 75, "An Act relating to the regulation of
marijuana by municipalities; and providing for an effective
date."
1:02:56 PM
The committee took an at-ease from 1:02:56 to 1:04:30 p.m.
1:04:58 PM
REPRESENTATIVE KELLER moved to adopt proposed CS to HB 75,
Version 29-LS0345\V, Martin, 3/23/15, as the working document.
There being no objection Version V was before the committee.
1:05:25 PM
REPRESENTATIVE CATHY TILTON, Alaska State Legislature, thanked
Chair LeDoux for working with her on the committee substitute
and turned testimony over to her aide.
1:05:50 PM
HEATH HILYARD, Staff, Representative Cathy Tilton, Alaska State
Legislature, paraphrased the following "Explanation of Changes"
[original punctuation provide]:
Title (Page 1, lines 1-6) - The title has been
significantly tightened from previous versions.
Section 2 (Page 2, line 21-22) - The household plant
limit has been increased from 12 to 24 plants. Also,
the term "residence" has been replaced with the term
"dwelling" to be more consistent with municipal
ordinances. LAA Legal has indicated that Statute
treats the two terms as functionally interchangeable.
Section 11 (Page 6, line 22) - the addition of the
phrase "consistent with the" referring to the
Administrative Procedures Act was included at the
requests of municipalities in order to prevent
conflict with their own ordinances. This would allow
them to use their own version of the Administrative
Procedures Act.
Section 14 (Page 7, lines 9-14) - This provision was
included after the discovery of a potential
circumstance regarding a "gap" in potential
enforcement. The way the original provision was
written, a scenario was envisioned where a 2nd class
borough (FNSB and MSB, for example), which does not
have general public health or police powers, may have
issued a registration but the borough's enforcement
would be limited only to the revocation of the
registration. This provides that the holder of the
registration is ALSO subject to state regulation or
enforcement.
Section 16 (Page 7, line 23) - Similar to the change
made in section 11 above, this allows municipalities
to use local ordinances that are substantially similar
or "consistent with" AS 44.62, the Administrative
Procedures Act.
Several sections have been renumbered accordingly, as
a result of the changes listed above.
1:06:50 PM
MR. HILYARD said the household plant limit was increased from 12
plants to 24 plants as Chair LeDoux mentioned during the last
committee hearing there was confusion as to whether there was an
existing limit on the books. He related that Mr. Dennis
Wheeler, Municipality of Anchorage, sent Mr. Hilyard the [2006]
Darrin Hotrum v. State of Alaska, 130 P.3d 965 (Alaska), case
that dealt with the issue [of 24 plants]. Mr. Hilyard then
stated there is existing statute making reference to 24
(Indisc.). AS 11.71.040[a](3)(G), which reads:
(G) 25 or more plants of the genus cannabis;
MR. HILYARD related that anything in excess of 25 plants under
current criminal law is presumed possession with intent to
distribute, and anything under 25 plants is presumed to be for
personal use consistent with Ravin v. State of Alaska, 537 P.2d
494 (Alaska 1975) and Noy v. State of Alaska, 83 P.3d 538, 544-
45 (Alaska Ct. App. 2003) decisions. He referred to Section 11,
page 6, line 22, and advised "there is an addition of the phrase
'consistent with the'" which has to do with the Alaska
Administrative Procedures Act. He said it was noted that a
number of the larger municipalities have their own functional
ordinances that act as an Administrative Procedures Act. He
explained that phrases allows them to use their own ordinances
and prevent any potential confusion between what they have on
their books and what the Alaska Administrative Procedures Act
provides for.
1:08:23 PM
CHAIR LEDOUX asked for clarification.
MR. HILYARD advised he is referring to page 6, line 22-23, which
read:
... These procedures shall be consistent with the [SUBJECT
TO ALL] requirements of AS 44.62 (Administrative Procedure
Act).
1:08:42 PM
CHAIR LEDOUX referred to [Sec. 2, AS 17.38.020] and asked if
there was a change on page 2, lines 5-31 through Page 3, lines
1-5, and further asked and it was in the previous CS.
MR. HILYARD said it was in the previous CS and offered a brief
history from the Community and Regional Affairs Standing
Committee. He explained that municipal attorneys that assisted
in crafting this legislation asked for additional sideboards on
defining what "assisting" properly means. Legislative Legal and
Research Services provided the language in the bill and there
has not been a change since the "S" version.
1:09:59 PM
MR. HILYARD pointed to Sec. 14, Page 7, lines 9-14, and stated
this amendment was identified by Representative Keller in that
there was a gap in potential enforcement. He used the example
that second class boroughs do not have general police powers or
health powers. The way the initiative language read, if the
municipality issued a registration and the registrant acted
improperly, the municipality itself would not have the ability
to enforce and would have to depend entirely on the state. The
gap was closed in that the state also has enforcement authority
for activities on commercial marijuana establishments at any
time. He referred to Sec. 16, page 7, line 23, and stated it is
similar to the change made to the Administrative Procedures Act
provision in Sec. 11. It allows municipalities to use local
ordinances that are substantially similar or "consistent with"
AS 44.62, the Administrative Procedures Act. He described the
language as "clean up" so that municipalities were not
unnecessarily bound to particular language that might conflict
with their own ordinances. Lastly, he explained, several of the
sections throughout the remainder of the bill have been
renumbered accordingly as a result of drafting changes.
1:11:56 PM
REPRESENTATIVE KELLER referred to Sec. 5, page 3, line 18, and
questioned the rationale of "half of the registration
application fee," as to whether it was looked at in the context
of responsibilities that will be shared for the enforcement,
regulation, and cost of application.
MR. HILYARD stated he could not answer that question because the
language came directly from the initiative. Essentially, he
said he found Sec. 5 non-substantive because the only real
change pertaining to HB 75 was primarily the reference from
"local government" to "municipality."
1:13:06 PM
REPRESENTATIVE LYNN referred to [Sec. 2, AS 17.38.020(2), page
2, lines 21-23], and asked for an explanation as to why the
language changed from 12 plants to 24 plants [for personal use].
MR. HILYARD reiterated that there is existing statute in Title
11 stipulating that anything over 25 plants is a criminal charge
of possession with intent to distribute, or misconduct involving
a controlled substance. He described the presumption being that
under Ravin and Noy, 24 plants is for personal use.
REPRESENTATIVE GRUENBERG asked for the cite.
MR. HILYARD advised it should be in his packet and is AS
11.71.040(3)(G).
1:15:03 PM
REPRESENTATIVE KELLER referred to [Sec. 9, AS 17.38.110(b)],
page 6, line 4, and opined that criminal penalties can only be
set by a First Class Borough or a Home Rule Borough and not a
broader ... this uses the term municipality which would include
both, but it also includes others, so the language should be
tightened up a bit, he related.
MR. HILYARD advised that it certainly was not the intention of
the Community and Regional Affairs Standing Committee to provide
municipalities with powers they do not currently possess. He
referred to a legal memo from Ms. Hilary Martin, Legislative
Legal and Research Services written earlier this month that
addressed that question. AS 29.25.070, which read:
(a) For the violation of an ordinance, a municipality
may by ordinance prescribe a penalty not to exceed a
fine of $1,000 and imprisonment for 90 days. For a
violation that cannot result in incarceration or the
loss of a valuable license, a municipality may allow
disposition of the violation without court appearance
and establish a schedule of fine amounts for each
offense.
MR. HILARY deferred to Ms. Martin, or a municipal attorney on
line, for further clarification.
1:16:55 PM
DENNIS WHEELER, Municipal Attorney, Legal Department,
Municipality of Anchorage asked Representative Keller to repeat
his question.
REPRESENTATIVE KELLER opined that the question may be more
appropriately for the drafter of the legislation. He pointed to
page 6, line 4, regarding the municipality and established civil
and criminal penalties. His concern is that the legislation may
be creating a power for other municipality types that was not
intended according to the sponsor.
MR. WHEELER replied that he represents a Home Rule Borough and
he does not know the ins and outs of jurisdictions that are not
Home Rule Boroughs. He stated they have a significant number of
laws that are local misdemeanor offense laws that are enforced
every day through the police department. As Representative
Keller noted, his question might be better for someone in the
state to answer with respect to whether or not this opens the
door to Second Class Boroughs and so forth, he said. He offered
that this legislation clarifies that a Home Rule Borough can
continue to enact misdemeanor offense ordinances.
1:19:25 PM
The committee took an at-ease from 1:19 to 1:21 p.m.
1:21:42 PM
CHAIR LEDOUX advised the committee could consider a conceptual
amendment if it is necessary.
1:21:53 PM
REPRESENTATIVE KELLER said he is willing to offer a conceptual
amendment and pointed to [Sec. 18, AS 17.38.200(c)], page 8,
line 22, " ... and the board is not required to approve the
application." He questioned if it is clear that the board is
always referring to the state control board. The conceptual
amendment he would propose is just that the drafters would
review it and ascertain it is clear without unintended
consequences.
REPRESENTATIVE KELLER responded to Chair LeDoux that he is
asking whether the board is referring to the Alcoholic Beverage
Control Board (ABC Board), or if it could apply to some useful
regulatory board.
MR. HILYARD responded that the language is directly from the
initiative. He said, in the absence of a Marijuana Control
Board, he presumed the board is the ABC Board as the initiative
language provides that the legislature may enact or adopt a
Marijuana Control Board.
1:23:35 PM
REPRESENTATIVE KELLER advised that putting it on the record is
enough as the drafter should review the use of the word "board"
to ascertain it is clear throughout the legislation.
MR. HILYARD responded that the initiative sponsors drafted this
language, within which the drafter used relative portions of AS
17.38.
REPRESENTATIVE KELLER pointed out that the language that is
passed is the product of the legislature. He opined that once
the law passes, the legislature can't go back and say the
confusion factor is in there and it's not our fault. He
expressed that the drafter must ascertain that the language is
clear as the legislature has that responsibility.
1:24:47 PM
REPRESENTATIVE CLAMAN surmised that Sec. 9 is technically the
initiative's language except changing "local government" to
"municipality," and adding "and criminal."
MR. HILYARD responded "That is correct."
1:25:41 PM
CHAIR LEDOUX advised that public testimony is closed and invited
testimony is open.
1:26:09 PM
MR. WHEELER described the bill as a good product and that his
office supports this version of the bill. He noted that when
the state determines regulations and statutes, and whether there
will be a marijuana control board, municipal governments will
have basic parameters within which to regulate at the local
level.
1:28:01 PM
AMY MEAD, Assistant Municipal Attorney, Law Department, City and
Borough of Juneau voiced her support and appreciation and stated
that the bill contains important provisions left unanswered by
the initiative. She opined these provisions will assist
[municipalities] in drafting local legislation necessary to
responsibly regulate new business as part of this process. She
expressed her appreciation that the bill includes the definition
of "assisting," as it provides a protest process, recognizes
marijuana clubs as a type of marijuana establishment, fixes the
Administrative Procedure Act issue, and allows that criminal
sanctions are allowed for time, place, and manner violations.
These provision are consistent with other land use regulations
and the power provided to municipalities under AS 29.35.010 and
AS 29.25.070.
1:29:50 PM
CHAIR LEDOUX requested that Ms. Mead and Mr. Wheeler remain on
the line.
1:30:14 PM
REPRESENTATIVE LYNN moved to adopt [Amendment 1], labeled 29-
LS0345\V.1, which read:
Page 2, line 21:
Delete "24"
Insert "12"
Delete "12"
Insert "six"
REPRESENTATIVE LYNN referred to page 2, line 21, and stated that
he believes changing the number of [personal use] plants from 24
to 12 is a happy medium between zero and 24. "I don't think we
need a forest" of plants in anyone's dwelling, he opined.
CHAIR LEDOUX objected.
1:31:31 PM
CHAIR LEDOUX expressed that the terms of the initiative allow 6
plants per person regardless of how many people live in a
household, and 24 plants is a compromise. Nevertheless, she
said, in order to make matters easier for municipalities in
establishing a bright line, it appears appropriate to use the
white line municipalities and police departments have used for
years to determine intent to sell. She noted that she maintains
her objection.
1:32:26 PM
REPRESENTATIVE MILLETT opined that the closer the committee
stays to the language of the initiative, the better case the
state will have if it comes down to a lawsuit. She offered she
will not vote in favor of the amendment.
1:32:55 PM
REPRESENTATIVE KELLER said he supports the amendment and pointed
out that any number picked over the number six is an arbitrary
number. The committee is setting a bright line and, he noted,
there is testimony "we" don't care where the legislature sets
the line as long as a line is set. He does not see any
justification in going to the maximum allowed by going to 24.
1:33:25 PM
REPRESENTATIVE CLAMAN remarked that he supports Chair LeDoux and
will not vote in favor of the amendment. He expressed that he
views 24 plants as a compromise and a bright line in light of
the Holtrum case, and the previously articulated reasons.
1:34:22 PM
REPRESENTATIVE GRUENBERG stated he associates himself with
Representative Claman's comments.
1:34:48 PM
A roll call vote was taken. Representatives Lynn, and Keller
voted in favor of Amendment 1. Representatives Foster, Millett,
Claman, Gruenberg, and LeDoux voted against it. Therefore,
Amendment 1 failed the House Judiciary Standing Committee by a
vote of 2-5.
1:35:30 PM
REPRESENTATIVE CLAMAN moved to adopt [Amendment 2], labeled 29-
LS0345\V.2, which read:
Page 6, line 4:
Delete "and criminal"
REPRESENTATIVE CLAMAN referred to page 6, line 4, wherein the
language would delete "and criminal" as he is committed to
supporting the language of the initiative. Although, he stated,
he was a "no" vote on the initiative, he recognizes that the
majority of the public voted in favor of the initiative language
except the language only references "civil penalties." He
opined that as a matter of standard statutory construction, if
the Alaska Supreme Court was asked to analysis the initiative's
language it would presume that every word had meaning. He
further opined the Alaska Supreme Court would presume that words
not included, were intended to not be included. He noted that to
add the words "and criminal" is changing the jurisdiction by
taking language different from the intent of the voters.
CHAIR LEDOUX objected for purposes of discussion.
1:37:18 PM
REPRESENTATIVE KELLER noted that Representative Claman's logic
that because the word "criminal" is not in the initiative means
that the very intent was to not allow for a criminal penalty is
a leap. He opined that when the initiative was written, the
sponsors would have made the statement that there would be no
civil or criminal penalties allowed.
REPRESENTATIVE CLAMAN responded that this particular bill
relates to the regulation of marijuana, and not to the question
of civil penalties. He referred to a memo from Hilary Martin,
Legislative Legal and Research Services, dated 3/2/15, and
stated that on page 2, paragraph 2, Ms. Martin specifically
wrote "it is possible that the intent of this language is to
prevent a municipality from imposing criminal penalties on
violations of an ordinance as only civil penalties are
mentioned." He argued that it is not a leap of faith because
the committee is not dealing with the broad scheme of criminal
penalties, but is focused solely on the question of regulations
affecting those that get permits for a marijuana sales and
growing business. He said that the Alaska Supreme Court would
read the fact that there is no language about criminal penalties
and would look at it as a reason to limit the powers to just
civil penalties.
REPRESENTATIVE KELLER said that was exactly his point and asked
the sponsor to reiterate why the language was put in, for the
sake of context.
1:39:46 PM
CHAIR LEDOUX asked the municipal attorneys on line how they
regulate and enforce, whether they do enforce, or whether they
have criminal ordinances with respect to alcohol sales.
REPRESENTATIVE KELLER requested historical background for the
committee on the discussion around inserting this language.
MR. HILYARD said this was an issue in early discussions of
developing HB 75 to its current iteration. He noted that Title
29 provides certain municipalities with limited criminal penalty
authority, and the rationale was that it was not abundantly
clear how Title 29 would apply. The municipalities that do have
general police authority prefer to make it clear that they would
continue to maintain the ability to adopt criminal penalties
specifically with time, place, and manner, violations of
commercial establishments. It was suggested by municipal
attorneys that it would be unlikely that local assembly or city
councils may adopt those, they simply wanted to have that
ability in the event it was necessitated.
1:41:39 PM
CHAIR LEDOUX pointed to alcohol establishments and asked whether
municipalities are allowed to have criminal penalties for
violations of ordinances or regulations with respect to time,
place, and manner.
MS. MEAD responded "The City and Borough of Juneau does."
MR. WHEELER responded that under the Anchorage Municipal Code,
Title 8, Chapter 35, there are a number of ordinances that make
it misdemeanor offenses to violate the rules including hours of
service, serving under aged persons, allowing person who are
intoxicated on premises, and so forth.
1:42:35 PM
REPRESENTATIVE GRUENBERG said he supports the amendment and
noted that the language of the bill reads a "municipality may
establish civil and criminal penalties." "Read directly and
literally," he opined, it does not limit it to municipalities
that already have the power. He further opined it could be read
as giving municipalities that don't already have that power
additional power to do so. He remarked he does not know if that
argument would be accepted in view of the fact there is no
amendment to the governing statutes in Title 29 on municipal
powers, but it could create litigation. Whether it should not
violate the initiative due to the language on line 4 does not
say "may establish only civil" or "may establish civil but not
criminal." He opined the court would apply the rule that
because the initiative does not just say "penalties," but says
"civil penalties" that it would be read as excluding criminal.
He explained that normally the Rules of Statutory Construction
only require that things that are included be put into the
statute.
REPRESENTATIVE KELLER responded to Representative Gruenberg that
the committee is not a court and it is deals with whether or not
to put [certain] language into Alaska Statutes. According to
Representative Gruenberg's argument, he related, to be certain
the language is crystal clear that it would have to include
language that reads that the "civil and not criminal." The
committee's role is to determine intent and clarify what goes
into statute. He referred to Representative Gruenberg's
argument and said he intends to propose a conceptual amendment
that limits this section to municipalities that already have the
power to establish criminal statutes.
CHAIR LEDOUX remarked with regard to the conceptual amendment,
after hearing from the City and Borough of Juneau, and the
Municipality of Anchorage regarding the regulation of liquor,
she does not have a problem with this language. She pointed out
that it does not appear to be violative of the spirit of the
initiative in that the legislation allows municipalities to
regulate marijuana establishments in the same manner.
1:47:19 PM
CHAIR LEDOUX said she maintained her objection.
A roll call vote was taken. Representatives Gruenberg, Foster,
and Claman voted in favor of Amendment 2. Representatives
Keller, Lynn, Millett, and LeDoux voted against it. Therefore,
Amendment 2 failed the House Judiciary Standing Committee by a
vote of 4-3.
1:47:56 PM
REPRESENTATIVE KELLER proposed a conceptual amendment [Amendment
3], on page 6, line 3, after the word municipality insert "with
power to establish civil and criminal penalties" and then
continue on with the language in the bill. He offered that his
intention is that only municipalities currently with the power
to set criminal penalties be allowed to set criminal penalties.
REPRESENTATIVE GRUENBERG advised he supports [Amendment 3].
CHAIR LEDOUX objected for purposes of discussion.
REPRESENTATIVE GRUENBERG stated that Amendment 3 helps with the
problem.
CHAIR LEDOUX removed her objection. [There being no further
objection Amendment 3 passes the House Judiciary Standing
Committee.]
1:50:49 PM
The committee took an at-ease from 1:50 to 1:52 p.m.
1:52:27 PM
REPRESENTATIVE CLAMAN [moved to adopt] Amendment 4, which read:
Page 2, line 29, through page 3, line 5:
Delete "; assisting under this paragraph does not
include
(A) using, displaying, purchasing, or transporting
marijuana in excess of the amount allowed in this
section;
(B) possessing, growing, processing, or transporting
marijuana plants in excess of the amount allowed in
this section;
(C) growing marijuana plants for another person in a
place other than that other person's dwelling"
CHAIR LEDOUX [objected].
REPRESENTATIVE CLAMAN referred the committee to [page 2, line
29, through page 3, line 5], and advised there are three layers
of the existing language that was added into the CS before the
committee. With regard to assisting, he found the language
vague, ambiguous and confusing and, therefore, submits
[Amendment 4]. He referred to Sec. 2, "notwithstanding whatever
else is the law it will be lawful and not criminal under Alaska
law to possess, use, display, purchase, transport, marijuana
accessories, Sub (2) grow marijuana, (3) transfer one ounce or
less of marijuana (4) consume marijuana, and then using the
specific language of the initiative, paragraph (5) is that you
can assist another person who is 21 years of age or older in
doing all of 1-4, which was assisting, possessing marijuana."
Previously marijuana is not allowed, possession of marijuana is
generally illegal, except as protected by Ravin. Currently the
language is what was previously (Indisc.) can't be now that it
is no longer prohibited as now it is specifically lawful to do
this and now, he related, the language is trying to create a
negative on the negative by trying to say what assisting is. He
pointed out Sub (C) of the assisting language "growing marijuana
plants for another person in a place other than that other
person's dwelling." He said he understands this language was
urged by the municipalities and had questions regarding Sub (C)
how can the person watering marijuana plants as part of the
housesitting responsibilities answer "Sub (5) where it basically
says a person can assist in somebody to grow plants at their
house and (5)(C) trying to say you can't do it." He stated it
seems they are in contradiction and he asked the municipal
attorneys to explain how this works.
MS. MEAD responded that she did not ask for [the language] but
believes this paragraph would allow someone to have their plants
watered while on vacation, it would prohibit a person sending a
note to 20 of the neighbors telling them "I" will grow their
plants for them in my house and ending up with 80 plants. She
opined that is what it was intended to prohibit, to not allow a
communal growing situation in one dwelling.
1:56:48 PM
REPRESENTATIVE CLAMAN questioned if the concern is that someone
will try to be a community grower how does that get a person
that is growing more than 24 plants, get around the 24 plant
limit that is part of the committee substitute Sub (2) that is
specifically permitted. He further questioned that the police
would ask a person how many plants they have and if they have
more than 24 plants, there is a problem.
MS. MEAD replied that if there are not enough adults living in
the house. She posited that the number of plants allowed in a
particular dwelling are still tied to the number of adults in
the house. The assisting language prohibits someone from doing
a "work around" and growing plants for someone not residing in
the home by claiming they are assisting their friend in growing
his six plants - just growing them at "my" house.
1:58:02 PM
REPRESENTATIVE CLAMAN stated that currently there is a statute
dealing with legal accountability based on the conduct of
another, AS 11.16.110 [Legal Accountability Based Upon the
Conduct of Another], the aiding and abetting statute. He asked
how someone with 30 plants in their house ... "how can a person
assist someone to grow marijuana and how do we basically try to
negate what the language has specifically told them they could
do."
MS. MEAD remarked that the aiding and abetting statute does not
apply as it is not a criminal activity for every adult over the
age of 21 to grow six plants in his/her home. She reiterated it
is trying to prevent a situation where there is one person
growing more than the number of plants otherwise authorized by
claiming they are for someone else.
1:59:20 PM
REPRESENTATIVE CLAMAN said the current provisions allow 24
plants in a person's own home, and do not allow him to have 24
plants in Chair LeDoux's home. He said he is only allowed 24
plants in his own home but he can say he is assisting her then,
he questioned, isn't Chair LeDoux now in for aiding and abetting
him in having more than 24 plants.
MS. MEAD answered that it would be Representative Claman that
would be in trouble, but a person cannot have 24 plants in their
home unless there are four adults living there.
REPRESENTATIVE CLAMAN responded that what is being proposed in
the statute, 24 plants is the line and a person could have 24
plants whether they have ...
CHAIR LEDOUX expressed that Representative Claman's description
is not what everyone intended the line.
2:00:32 PM
REPRESENTATIVE CLAMAN opined that the amendment is confusing
because it does not address ... the initiative specifically says
that a person can assist another person in all these activities.
Now, he said, it is trying to say that a person cannot assist
those persons in those very same activities. He related that he
does not see how the person with 36 plants in their home, what
is the basis for saying "I'm assisting somebody" that the
assistance somehow creates a defense.
CHAIR LEDOUX said "I don't understand what you are talking about
at all right now."
2:01:20 PM
REPRESENTATIVE GRUENBERG said that the committee tries to write
language so clearly that public defenders, prosecutors, judges,
and legislators can understand and this provision is a triple
negative.
CHAIR LEDOUX remarked that she does not a problem with the
language as it reads that everyone is allowed six plants, but if
one person is caught with twelve plants they cannot say "these
are my six, and the other six belong to someone else and I am
just assisting them to grow their six plants."
2:03:24 PM
REPRESENTATIVE GRUENBERG conveyed that there are other scenarios
this will arise in as the person watering the plants is
assisting the other person. He opined he would like the
language to be clearer.
2:05:20 PM
MR. HILYARD pointed to page 2, lines 29-31 through page 3, lines
1-5, and said in reviewing (a)[5], "assisting under this
paragraph does not include using, displaying, purchasing, or
transporting, marijuana in excess of the amount allowed in this
section." A person can water their friend's plants all day long
so long as those plants are in their friend's home.
CHAIR LEDOUX offered that a friend cannot go away for a while
and bring their plants to another person's home.
MR. HILYARD responded his reading of the provision is that he
could water his friend's plants at his friend's home.
2:06:36 PM
REPRESENTATIVE MILLETT remarked that a person can babysit plants
but cannot bring the plants to their home.
2:06:47 PM
REPRESENTATIVE CLAMAN asked why a neighbor cannot bring 24
plants to person's home when the person does not have any
plants. He included that the 24 plants represent four adults
living in the neighbor's home.
MR. HILYARD responded that as long as there are not more than
six plants in a [single] individual's home at a time, it really
doesn't matter.
REPRESENTATIVE CLAMAN restated his question of why the person
assisting his neighbor, who has four adults living in the
neighbor's house, bring [24 plants] to his house to water and
assist the neighbor.
MR. HILYARD replied "No," because the committee is defining it
that does not constitute assisting for the purposes of this
paragraph.
REPRESENTATIVE CLAMAN further questioned that under this
language "I specifically could not bring them to my house,
whereas, under ... if you don't have these ... except the
language that is in the proposed ... that I am proposing to
delete ... you didn't have that language there wouldn't be a
basis to say I could take them to my house."
MR. HILYARD replied that he could take six plants, if there were
no other plants in his home.
2:08:36 PM
REPRESENTATIVE GRUENBERG reiterated that lines 29-30, "assisting
under this paragraph does not include ..." is confusing. What
the language should say is that even if a person is helping
someone over 21, the person is criminally liable if they do the
following things ... He expressed that would be one way of
making the language clearer.
2:10:10 PM
CHAIR LEDOUX expressed that she does not have a problem with the
language and will maintain her objection.
A roll call vote was taken. Representatives Claman and
Gruenberg voted in favor of Amendment 4. Representatives
Foster, Keller, Lynn, Millett, and LeDoux voted against it.
Therefore, Amendment 4 failed the House Judiciary Standing
Committee by a vote of 2-5.
2:10:59 PM
REPRESENTATIVE KELLER moved to report CSHB 75, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
75(JUD) was reported from the House Judiciary Standing
Committee.
2:11:18 PM
The committee took an at-ease from 2:11 to 2:13.
HB 106-UNIFORM INTER.CHILD SUPPORT;PARENTAGE
2:13:58 PM
CHAIR LEDOUX announced that the final order of business would be
HOUSE BILL NO. 106, "An Act relating to the Uniform Interstate
Family Support Act, including jurisdiction by tribunals of the
state, registration and proceedings related to support orders
from other state tribunals, foreign support orders, foreign
tribunals, and certain persons residing in foreign countries;
relating to determination of parentage of a child; and providing
for an effective date." [Before the committee was CSHB
106(STA).]
2:14:01 PM
CAROL BEECHER, Deputy Director, Anchorage Central Office, Child
Support Division, Department of Revenue, advised the Alaska
Child Support Services Division is authorized under Title IV-D
of the Social Security Act and that the agency has been in
operation since 1976. The mission of the child support division
is to collect and disburse child support of which it collected
approximately $112 million in FY14, and approximately 90 percent
went directly to families for support and 10 percent reimbursed
the state and federal government for public assistance. The
case load currently is approximately 49,000 cases. She
explained that the Uniform Interstate Family Support Act (UIFSA)
was drafted by the Uniform Law Commissioners and provides
universal and uniform rules for the enforcement of family
support orders between states. Alaska passed the Uniform
Interstate Family Support Act in 1996 and by 1998 all United
States jurisdictions had passed UIFSA into law. She opined the
rationale for amending UIFSA is that it was clear some revisions
were required to clarify jurisdictional and controlling order
issues. The Act was amended by the Uniform Law Commission in
2001, but enactment was not required by the states. In 2007,
the United States signed The Hague Convention Treaty on the
International Recovery of Child Support and Other Forms of
Family Maintenance (Convention). She advised this Convention
contains numerous provisions that establish uniform procedures
for processing international child support cases.
2:16:29 PM
MS. BEECHER advised that in 2008 the Uniform Law Commission
amended UIFSA to incorporate changes required by the Convention.
In 2010 the United States Senate gave its advice and consent to
the treaty. In September 2014, Public Law 113-183, Preventing
Sex Trafficking and Strengthening Families Act was signed into
law. This act requires that all United States jurisdictions
enact UIFSA 2008 in their next legislative session. For
example, she noted, for Alaska the date is July 1, 2015.
2:17:36 PM
CHAIR LEDOUX asked if there were states that were not doing
anything.
MS. BEECHER responded that currently all states are either
enacting, or it is in their legislature, or it is being drafted.
2:17:45 PM
MS. BEECHER continued her presentation and stated that as a
condition of the federal financial participation, which is $19
million for Alaska, each state child support agency must have an
approved state plan which meets all federal requirements. The
Federal Office of Child Support Enforcement determines whether a
state plan is approved and it is requiring states to adopt UIFSA
2008 verbatim. The CS version of HB 106 is because Version A
went before the Office of Child Support Enforcement and they
prepared amendments so that the bill would be verbatim. She
advised this was also reviewed by Legislative Legal and Research
Services and the Department of Revenue's legal staff. She
opined that this bill will amend UIFSA and that most amendments
contain clean up language and clarifying definitions. She
pointed out that the primary change is the addition of a new
section, Article 7A. [Support Proceedings under Convention] Sec.
96, [AS 25.25 is amended by adding a new section.], page 31.
She advised that this new section provides guidelines and
procedures for the registration, recognition, enforcement, and
modification of foreign support orders from countries that are
parties to the Convention. To date, 33 countries have signed
onto the Convention. Passage of this bill will provide a better
opportunity for Alaska's children to receive child support from
parents that live in a foreign country. She noted that Alaska
already enforces foreign support cases when the parent provides
sufficient documentation, and that there are processes similar
to the way the agency currently enforces between states. But,
she further noted, this tends to be a one-way street. The
agency enforces foreign order orders but many countries will not
enforce United States' orders outside of a treaty agreement.
The new section of UIFSA will not go in effect until the treaty
is ratified. Until then states will continue to enforce orders
in the same way it currently enforces.
2:20:34 PM
STACY STEINBERG, Chief Assistant Attorney General, Statewide
Section Supervisor, Collections and Support Section, Civil
Division, pointed out that there are 106 section in the bill and
offered an overview sectional analysis. She described the meat
of the bill as Sec. 96, which is a new article dealing with
foreign support orders from the Convention countries. She
reiterated Ms. Beecher in that current law already provides for
Alaska to enforce foreign orders and this needs to become a two-
way street for the other countries to enforce our orders. Sec.
96, adds 13 new statutes that deal with processing requests from
other countries. Basically, she explained, it mirrors the
current process in Article VI, which is how orders are
registered now. There are a few differences on the time frame
for objecting to the registration. She referred to Sec. 20, AS
25.25.104 [Application of this chapter to resident of foreign
country and foreign support proceedings] and stated it includes
the 2008 changes. There will also be a new section, she
explained, that deals with the procedure to register a foreign
support order and designation whether using Article VI or
Article VII processes, in Sec. 95 of the bill. Another new
statute, AS 25.25.402, deals with parentage and was recently
moved from what was formerly .701, so only Article VII deals
with the foreign support orders. She offered that there are a
host of other changes directly related to the new Article VII,
of which many deal with definitions. Under the act there is a
legal fiction that a foreign country can be a "state," which is
being deleted so that a foreign country is truly a foreign
country. She remarked that it results in many statute changes,
including Secs. 1-16, as there are new definitions. She said
she determined there are 21 statutes that will be amended to add
either foreign country, or foreign tribunal, or define outside
the state, which results in 23 new sections of the bill. She
related there is clean up language fixing cross-references, and
providing for notice by electronic mail. She opined there are
many changes but the meat of it is in Sec. 96.
2:24:37 PM
MS. STEINBERG continued her analysis in that by adopting the
2008 version, the committee would be in essence adopting the
2001 changes by the Uniform Law Commission. She reiterated Ms.
Beecher in that the state is currently under the 1996 version
because that is what the federal government has mandated for
funding, and Alaska is required to update the 2001 changes. In
the statute, she remarked what is related to the 2001 changes
and in essence, she related, are clarifying changes to the laws
already on the books. In 2001, the state had been using UIFSA
for approximately 15 years and the drafters realized certain
areas needed to be "tweaked," she opined. As part of the 2001
changes there will be 3 new statutes, in that there is a change
in Sec. 40, AS 25.25.280 which deals with the application of the
act to a non-resident subject to the state's personal
jurisdiction. Another new statute, AS 25.25.615 deals with
jurisdiction to modify a child support order of a foreign
country, if that foreign country either lacks jurisdiction or
refuses jurisdiction to modify in Sec. 95. AS 25.25.281 deals
with spousal support in that a state can modify spousal support.
When is also in Sec. 40, of the bill and is not a new section as
these provision are already in current law in AS 25.25.205(f)
and .206(C). She explained that the drafter pulled those
sections out and put them in their own stand alone section. For
example, the court that sets spousal support will always have
jurisdiction over spousal support and is the only court that can
modify it, which is different from the rules on modifying child
support. She pointed out that 21 sections of the bill deal with
more clarifying amendments, for example, what court should
determine the controlling order. The clarifying amendments
touch 29 different statutes and there are 51 sections in the
bill that deal with that, she explained.
2:28:10 PM
MS. STEINBERG responded to Chair LeDoux that the bill is
something she and Ms. Beecher work with everyday and do not find
it confusing. She noted it is an excellent vehicle for child
support as when it was enacted in 1996, it was problematic
dealing with enforcing child support orders through different
states. Under this uniform law enacted in 1996, it made the
process much more efficient with the states communicating with
the same laws. She remarked that this bill expands it beyond
just the states in taking it to a more global level with the
main intent that children do get support no matter where the
parent resides.
2:29:53 PM
CHAIR LEDOUX stated that she sees the good intent of the bill
but it bothers her somewhat that if the legislature does not
pass this bill verbatim that "it's no good."
MS. STEINBERG responded that is her understanding as they have
worked closely with the Federal Office of Child Support.
Congress changed the law that applies to child support agencies,
and basically, in that law, changed the language to the states'
requirement to adopt from UIFSA 1996 to UIFSA 2008. She advised
she has been contact with the Federal Office of Child Support
and it has interpreted it to mean that each state must adopt
this in its next legislative session in order to continue to be
eligible. She explained that as part of its funding, the state
must provide a state plan and the state plan must be in
compliance in order to continue to receive funding.
CHAIR LEDOUX expressed that she is uncomfortable to have the
federal government say "you have to adopt this in exactly the
form we want it in, or it's no good." Within most uniform rules
there are differences between Alaska and California and Iowa,
even though they may be small differences, and are all
substantially the same. She asked that an attorney from the
federal government who deals with child support and this statute
attend the next meeting.
2:31:40 PM
MS. STEINBERG replied that in previous committee hearings
someone from the Federal Office of Child Support testify
regarding the verbatim requirement and how that affects funding.
Also available will be Ms. Lindsay Beaver, Uniform Law
Commission, to explain the uniform laws. Part of the reasoning,
she remarked, regarding uniformity amongst the states is related
to a uniform processes and mentioned that a few tweaks were
allowed as "we call it the bracketed language." For example,
not every state calls their child support agency the Child
Support Services Agency, but the actual substance of the bill
cannot be changed.
CHAIR LEDOUX asked whether the foreign countries are adopting
something that is absolutely identical to the bill.
MS. STEINBERG answered that the foreign countries have signed
the Convention, and as part of the Convention or treaty, they
have to agree to do certain things. The Convention is outlined
as an exhibit to the committee's packet, which is similar to
Article VII regarding documents that must be provided and due
process.
2:33:21 PM
REPRESENTATIVE CLAMAN surmised that the whole topic of
collecting child support internationally became the subject of
The Hague Convention Treaty that basically said if both sides of
the countries sign onto the treaty that both sides can collect
in each other's country.
MS. STEINBERG responded "That is essentially correct," in that
prior to The Hague Convention the Federal Office of Child
Support would contract with different countries with Bi-Lateral
Treaties or Reciprocating Agreements with specific countries
like Canada and the Canadian Provinces. The problem is that it
is very time consuming and each treaty had different provisions
on the forms. She described that currently there is a "new age"
approach where instead of trying to negotiate with each
individual country that the countries come together and all
agree to the same set of forms and processes.
2:34:56 PM
REPRESENTATIVE CLAMAN confirmed that The Hague Convention was
the means as opposed to the United States making one deal with
Canada and another with Mexico. The countries could sign on to
The Hague Convention, with the United State Senate, and that all
countries refer to The Hague Convention as a means of dealing
with this.
MS. STEINBERG responded in the affirmative and said it makes it
more efficient. She noted that part of the reason it is
critical for each state to adopt this language verbatim is that
this language is needed to implement the provisions of the
Convention because all of the states enforce child support. The
federal government directly does not address it through their
federal courts. In order for the United States to do the final
ratification process the United States must be prepared to say
it can do all the steps required under the Convention.
Basically it does not allow another country to come into the
United States - it allows that the United States will provide
services to them and will enforce their order, and likewise will
send a foreign order to the Polish central authority to enforce
the United States' child support against one of their citizens.
Another provision is that even though the United States does
some enforcement of foreign countries because law already
provides for it, it makes it better due to translation costs,
which can be very expensive. Some of the provisions will be
very helpful just in assisting the Child Support Services
Division with its enforcement. She noted that the Child Support
Services Division had to pay $1,500 for three different
translations in order to register an order in Alaska and enforce
it. Under Article VII, if it is one of the Convention
countries, it reads that the country must provide a copy in
their native language and a certified translation in English.
2:37:42 PM
CHAIR LEDOUX asked why Child Support Services Division pays for
the cost of translation currently, as normally if a plaintiff
presents an order to the court the plaintiff pays the
translating fee.
MS. STEINBERG responded that Child Support Services Division
provides services to parents and is required to enforce an order
for the parent which means the order must be registered in court
before enforcing it. Child Support Services Division is
required to obtain the translation so it can be enforced for
that parent.
MS. STEINBERG, in response to Chair LeDoux, stated that the
statute does not require that the state pay for the cost of
translating, but it is part of registering an order and the
parties must understand what it says.
2:38:55 PM
CHAIR LEDOUX said that Child Support Services Division could
require the parent to have the order translated, if it wanted
to.
2:39:11 PM
MS. BEECHER responded that Chair LeDoux is correct in that the
agency could require the parent to pay, but the custodial parent
is requesting services so she/he can receive child support and
the expense is so high they cannot afford it, the agency does
view it as a service it provides.
CHAIR LEDOUX quiered if there was a means test to determine
whether a custodial parent can use the agency's services.
MS. BEECHER responded "There is not."
CHAIR LEDOUX assessed that a custodial parent could have a
$200,000 income and the state would still pay for the
translation services.
MS. BEECHER answered that it is possible.
2:39:55 PM
REPRESENTATIVE CLAMAN pointed out that the federal government is
telling the states they all have to adopt the same provisions.
He said he is sensitive to government overreach but this is more
on an international level. He opined that it would be more
difficult if every state took a different path in its child
support rules.
MS. BEECHER answered in the affirmative.
2:41:21 PM
REPRESENTATIVE CLAMAN asked whether it is part of the scenario
today, without adopting this legislation, that there are
countries that come to Alaska and collect child support from
Alaska residents, but because Alaska has not adopted statutes
that would allow enforcement of The Hague Convention that Alaska
cannot go to some countries and collect child support from that
country.
MS. BEECHER offered that the scenario is possible, but she does
not have a specific example. Due to the fact that many
countries will not collect without a treaty provision, it is
possible they will not collect for Alaska.
2:42:10 PM
REPRESENTATIVE CLAMAN opined that Poland is a country in which
it can collect in Alaska today, but because the statute is not
in line with The Hague Convention, Poland does not necessarily
enforce Alaska's orders.
MS. BEECHER offered to provide more specifics on that issue, but
in a general sense the situation is that the United States has
the structure, including Alaska, for collecting child support.
She noted that even in the area of enforcement with other states
there are disagreements on what can be collected and how to go
about it. She assessed that the same situation occurs when
Child Support Services Division attempts to enforce a support
order to another country.
2:43:22 PM
CHAIR LEDOUX questioned that if the United States is allowing
another country to collect and use Alaska courts to collect
child support, and the other country is not enforcing Alaska's
child support orders, "why not play hard ball with them."
MS. BEECHER responded that as a general rule Child Support
Services Division is required to provide child support services
to people who provide the agency with the appropriate
documentation to open a child support [case]. The agency does
not view it from the perspective of Alaska and the country, but
rather as one person who needs the child support to be collected
for them.
CHAIR LEDOUX questioned whether that would be the person living
in the other country collecting from an Alaskan citizen.
MS. BEECHER answered that it could be either way wherein the
custodial parent lives in Alaska and the agency reaches out to
the other country to collect from the non-custodial parent in
another country, or the custodial parent could live in another
country and contact Alaska to collect for it.
2:44:36 PM
CHAIR LEDOUX expressed her concern that Alaskan courts are used
to collect money for Alaskan citizens which would go to another
country, while the other country was not honoring Alaska's child
support orders.
MS. BEECHER agreed that the scenario could occur. She clarified
that Alaska is an administrative state so most of the "orders we
do are administratively administered."
CHAIR LEDOUX asked Ms. Beecher to explain her statement.
MS. BEECHER explained that the agency has the authority to set
up cases and enforce them unless they are set up in the courts.
She further explained that someone could go to divorce court and
as part of that proceeding child support was set, and the agency
could enforce it for the courts, but set it up in court.
CHAIR LEDOUX questioned that in a child support proceeding, if
the custodial parent lives in Alaska wouldn't the parent simply
use Alaska courts to obtain another child support order. She
further questioned why the agency would enforce the child
support order from Poland, or Brazil, or Cuba, in that why
wouldn't the parent just have one from here.
2:46:09 PM
MS. STEINBERG answered that statute reads if there is no
existing child support order, the court will set one. She
further answered that if there is already an existing child
support order Child Support Services Division will enforce it.
Unless there is something wrong with the foreign order, the
order will be enforced and not put another order on top of it,
she said. It goes against the whole principle of the uniform
act which reads "there should be one order in time for the
child," so it is clear. She explained there are rules set out
in the act of when another jurisdiction can modify that order.
CHAIR LEDOUX asked how it works if a child support order from
another jurisdiction is more generous than a child support order
from Alaska. Different countries, different cultures, may have
different views of divorce, and the obligation to support
children, she pointed out.
MS. STEINBERG replied that under the current process Alaska has
that problem within other states. She explained that each state
is required to have their own set of child support guidelines
and the requirement is that they have to be numeric and have to
be considered on an economic basis. She said it is permitted
under the current system so if Child Support Services Division
has the child support order it will enforce it and often the
order is in different amounts. That order is enforced until it
is modified and there are a set of rules as to what point in
time another state can modify an order.
2:49:23 PM
REPRESENTATIVE KELLER requested clarification in that the treaty
is not ratified until the states comply with the bill.
MS. BEECHER replied "That is correct."
2:49:52 PM
REPRESENTATIVE KELLER said he found it novel as instead of the
United States Senate voting to ratify or not ratify, they
evidentially changed the law to say that all states must comply
in order for it to work. He described the bill in the context
of a threat that "if you don't do this we are going to take your
money away," and referred to comments by the Department of Law
that the bill is for Alaska's benefit because it had input
through its uniform commissioners. He opined that Alaskans have
more access to Senators Murkowski and Sullivan than they do to
the Uniform Law Commissioners. He described it as an odd
process put upon Alaska by the United States Congress and it
appears heavy handed and also impossible in that all states
would pass the legislation verbatim.
MS. BEECHER responded that this is an unprecedented way of
dealing with what is essentially a treaty. She explained it
could be interpreted as being much more beneficial to the states
and rather anti-federalist because it puts the vote for
ratification in the states' hands by way of requiring each child
support agency to adopt the amendments to the Uniform Interstate
Family Support Act. The Uniform Interstate Family Support Act
was drafted by the Uniform Law Commission but it was based on
input from all of the various states. The language itself is
the vehicle of child support agencies across the United States
that have worked together to figure out ways to enforce child
support across the line. Rather than having language that came
down from a signed treaty from the federal government, written
by the federal government, telling states they must enforce it
and this is the language. Instead, she noted, the federal
government chose to use the uniform act that was working well
between the states and has been an excellent vehicle in
enforcing interstate child support orders.
REPRESENTATIVE KELLER said he found it unsettling as it appears
to be an administrative act that Alaska is being told to "rubber
stamp" this, and trust us. It comes from the federal system,
and everyone has a different evaluation but 18 trillion in debt
and climbing ...
2:53:38 PM
CHAIR LEDOUX asked if Congress will ratify this Convention once
the states have adopted the bill, or is the ratification
automatic after the states have adopted the bill.
MS. STEINBERG responded that President Barack Obama signed the
treaty, then the treaty goes through the ratification process
and noted that the Senate already gave its advice and consent.
The next step is that all states adopt the implementing language
for the Convention because the United States has to say it is
going to do these things, and the things it agrees to do are in
the bill. After all 50 states have adopted the legislation, it
goes back to the President Obama to officially sign the
Instruments of Ratification that are then deposited with the
Kingdom of the Netherlands. Normally with a treaty it is
ratified by the United States Senate and it gives its advice and
consent. This is a different approach in that the states have
the implementing language so basically the United States can say
it has all of the procedures in place to enforce "your" child
support orders. She reiterated Ms. Beecher in that from the
child support perspective it is seen as a good thing because
child support agencies had input, and state law commissioners
drafted the changes specifically.
2:55:57 PM
MS. STEINBERG responded to Representative Gruenberg that if
Alaska is going to set a divorce and the father lives in Poland
and has never been to Alaska, Alaska will not have jurisdiction
to set a child support order over him. Alaska does not have
personal jurisdiction in that situation so the mother could come
to Child Support Services Division and ask for its assistance.
Child Support Services Division would then ask the Poland
authorities to set a child support order for the mother.
CHAIR LEDOUX assessed that even the existence of the child is an
action as to the conception of the child being an action of the
person in Poland. That action, having impregnated the woman
living in Alaska, would it not be enough to confer personal
jurisdiction. In many cases, personal jurisdiction meant the
person had to be there in order to confer, and then the courts
expanded that with "minimum contacts." She asked whether the
existence of the child in Alaska would be enough to confer
minimum contacts according to Alaska laws.
2:59:52 PM
MS. STEINBERG related that the mere existence of the child in
Alaska would not be sufficient minimum contacts. Alaska does
have strong "long arm" provisions when a person is not in Alaska
setting up the fictions as minimum contacts. Under this
scenario if the father has never been to Alaska, Alaska courts
do not have personal jurisdiction. Alaska has due process
standards and Poland could look at the Alaska order and
determine that the Polish citizen was not given notice, and
Alaska does not have jurisdiction over him so would not enforce
the order,
3:00:51 PM
REPRESENTATIVE GRUENBERG opined it would not make a difference
if there was notice, as notice does not confer jurisdiction. He
pointed out that within the Alaska Civil Code of Procedure an
article that deals with jurisdiction in Jonz v.
Garrett/AireSearch Corp., 490 P.2d 1197 (Alaska 1971), which
basically says the same as the California long arm statute, and
if there is jurisdiction under the United States Constitution
there is jurisdiction in Alaska. Under child custody it's more
of an in rem situation and if the child is in Alaska for six
months there is jurisdiction even if the other parent is not in
Alaska. He advised support works like this and it is somewhat
antiquated
3:01:35 PM
REPRESENTATIVE CLAMAN asked what exactly the United States
Senate did when it considered the bill. He further asked how it
can take up the bill for consideration but not give advice and
consent and somehow do something "wrung off." He requested more
information about exactly what the United States Senate did and
how it fits in. The legislation is dealing with international
situations and the notion that every state "gets" to do its own
thing in the international context is appealing from the state's
power, but is not consistent with the notion that "we are one
nation and we work with other nations."
MS. BEECHER asked whether Representative Claman was referring
specifically to the United States Senate advice and consent to
the treaty.
REPRESENTATIVE CLAMAN said it appears the United States Senate
took some action in 2010, but it was different from
ratification. He stated there was a vote in the Senate that
approved it, but it is more complicated than simply saying here
is the treaty, it was approved and given advice and consent. He
offered that it did something less than that and would like to
understand what it did.
3:03:11 PM
REPRESENTATIVE LYNN requested a simplistic answer to his
question of what would happen if this bill failed to pass the
Alaska legislature.
MS. BEECHER offered that the Alaska Child Support program is
required to have an approved state plan and it must be in line
with federal requirements. Public Law 113-183 mandated that all
states adopt UIFSA 2008 by the end of its first legislative
session.
MS. BEECHER responded to Representative Lynn that Public Law
113-183 was passed by the United States Congress and signed by
President Obama on September 29, 2014. The consequences are
that Alaska would not be eligible for the 66 percent match, and
it would also follow into the Temporary Assistance for Needy
Families (TANF) block grant which is at $45 million that the
state receives. She explained that would also be at risk
because Alaska is required to have an approved child support
agency in order to receive the grant funds. The federal
government told the agency that Alaska funds are at risk and it
is mandated to follow the law in order to be eligible for those
funds.
3:04:48 PM
CHAIR LEDOUX questioned whether the treaty becomes law if only
49 states pass the legislation, or can Alaska hold it up if it
so chose.
MS. BEECHER answered it is the agency's understanding that all
United States jurisdictions must pass UIFSA 2008 to ratify the
treaty. Essentially, she noted, the treaty would not pass until
Alaska conceded to that vote.
CHAIR LEDOUX advised she is holding the bill over and requested
that a federal attorney experienced in UIFSA attend the next
meeting.
REPRESENTATIVE GRUENBERG requested that a uniform commissioner
also attend the next meeting.
[HB 106 was held over.]
3:05:58 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:05 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSHB106(STA) Brief Synopsis 032615.pdf |
HJUD 3/27/2015 1:00:00 PM |
HB 106 |
| HB106 Fiscal Note-0897-DOR-CSS-2-6-15.pdf |
HJUD 3/27/2015 1:00:00 PM |
HB 106 |
| HB106 Fiscal Note-JUD.pdf |
HJUD 3/27/2015 1:00:00 PM |
HB 106 |
| HB106 Fiscal Note-LAW.pdf |
HJUD 3/27/2015 1:00:00 PM |
HB 106 |
| HB106 Sectional Analysis - CSHB106(STA).pdf |
HJUD 3/27/2015 1:00:00 PM |
HB 106 |
| HB106 Sponsor Statement.pdf |
HJUD 3/27/2015 1:00:00 PM |
HB 106 |
| HB106 Supporting Document - Murkowksi Letter.pdf |
HJUD 3/27/2015 1:00:00 PM |
HB 106 |
| HB106 ver W.PDF |
HJUD 3/27/2015 1:00:00 PM |
HB 106 |
| CS HB 75 Version V.pdf |
HJUD 3/27/2015 1:00:00 PM |
HB 75 |