Legislature(2011 - 2012)CAPITOL 106

03/17/2011 08:00 AM STATE AFFAIRS


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08:07:05 AM Start
08:07:26 AM HB88
10:00:56 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HB 88 USE OF FOREIGN LAW TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 169 LAA REVIEW OF PROPOSED REGULATIONS TELECONFERENCED
Scheduled But Not Heard
                    ALASKA STATE LEGISLATURE                                                                                  
             HOUSE STATE AFFAIRS STANDING COMMITTEE                                                                           
                         March 17, 2011                                                                                         
                           8:07 a.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Bob Lynn, Chair                                                                                                  
Representative Wes Keller, Vice Chair                                                                                           
Representative Paul Seaton                                                                                                      
Representative Peggy Wilson                                                                                                     
Representative Max Gruenberg                                                                                                    
Representative Kyle Johansen                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Representative Pete Petersen                                                                                                    
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 88                                                                                                               
"An    Act   prohibiting    a   court,    arbitrator,   mediator,                                                               
administrative agency,  or enforcement authority from  applying a                                                               
law,  rule,  or  provision  of  an  agreement  that  violates  an                                                               
individual's right under the Constitution  of the State of Alaska                                                               
or the United States Constitution."                                                                                             
                                                                                                                                
     - HEARD & HELD                                                                                                             
                                                                                                                                
HOUSE BILL NO. 169                                                                                                              
"An Act relating to the review of proposed regulations by the                                                                   
Legislative Affairs Agency; and providing for an effective                                                                      
date."                                                                                                                          
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB  88                                                                                                                  
SHORT TITLE: USE OF FOREIGN LAW                                                                                                 
SPONSOR(s): REPRESENTATIVE(s) GATTO                                                                                             
                                                                                                                                
01/18/11       (H)       PREFILE RELEASED 1/14/11                                                                               
01/18/11       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/18/11       (H)       STA, JUD                                                                                               
03/17/11       (H)       STA AT 8:00 AM CAPITOL 106                                                                             
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
KAREN SAWYER, Staff                                                                                                             
Representative Carl Gatto                                                                                                       
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Presented HB  88 on behalf of Representative                                                             
Gatto, sponsor.                                                                                                                 
                                                                                                                                
REPRESENTATIVE CARL GATTO, Alaska State Legislature                                                                             
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   As sponsor,  provided answers  to questions                                                             
during the hearing on HB 88.                                                                                                    
                                                                                                                                
DAVID YERUSHALMI, General Counsel                                                                                               
Center for Security Policy                                                                                                      
Washington, D.C.                                                                                                                
POSITION STATEMENT:  Testified during the hearing on HB 88.                                                                   
                                                                                                                                
DAVID HECKERT, Volunteer                                                                                                        
Stop Islamization of America                                                                                                    
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT:  Testified in support of HB 88.                                                                           
                                                                                                                                
JEFFREY MITTMAN                                                                                                                 
American Civil Liberties Union (ACLU) of Alaska                                                                                 
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in opposition to HB 88.                                                                        
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
8:07:05 AM                                                                                                                    
                                                                                                                                
CHAIR BOB LYNN called the  House State Affairs Standing Committee                                                             
meeting to  order at 8:07  a.m.  Representatives  Keller, Seaton,                                                               
Johansen,  and   Lynn  were  present   at  the  call   to  order.                                                               
Representatives P.  Wilson and Gruenberg  arrived as  the meeting                                                               
was in progress.                                                                                                                
                                                                                                                                
                   HB  88-USE OF FOREIGN LAW                                                                                
                                                                                                                                
8:07:26 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN announced  that the first order of  business was HOUSE                                                               
BILL NO. 88,  "An Act prohibiting a  court, arbitrator, mediator,                                                               
administrative agency,  or enforcement authority from  applying a                                                               
law,  rule,  or  provision  of  an  agreement  that  violates  an                                                               
individual's right under the Constitution  of the State of Alaska                                                               
or the United States Constitution."                                                                                             
                                                                                                                                
8:07:41 AM                                                                                                                    
                                                                                                                                
KAREN  SAWYER, Staff,  Representative  Carl  Gatto, Alaska  State                                                               
Legislature, presented  HB 88 on behalf  of Representative Gatto,                                                               
sponsor.  She said  the intent of HB 88 is to  prevent a court or                                                               
other  enforcement  authority  from   enforcing  foreign  law  in                                                               
Alaska.   Ms. Sawyer stated that  the U.S. has "unique  values of                                                               
liberty,"  which  do not  exist  in  foreign legal  systems,  and                                                               
foreign laws are increasingly finding  their way in to U.S. court                                                               
cases, particularly in  the area of family  law involving divorce                                                               
and  child custody.   She  noted that  included in  the committee                                                               
packet is a document showing the  types of foreign law in various                                                               
countries.                                                                                                                      
                                                                                                                                
MS.  SAWYER said  HB 88  would provide  a statutory  framework to                                                               
prohibit  constitutionally objectionable  foreign laws  and legal                                                               
systems from  finding their way  into the state  judicial system.                                                               
She said  one example of  transnational law is shari'a,  which is                                                               
Islamic  law that  is applied  as  the law  of the  land in  many                                                               
countries  around the  world.   She noted  that in  the committee                                                               
packet  is  a  handout  listing  the  various  legal  systems  of                                                               
countries  around  the  world.    Ms.  Sawyer  said  many  Muslim                                                               
countries apply shari'a as the law  of the land in specific legal                                                               
areas such as  family law and inheritance.  She  indicated that a                                                               
copy  of  "Representative  Civil Legal  Cases  Involving  shari'a                                                               
Law,"  by the  American  Public Policy  Alliance,  would be  made                                                               
available to committee members.                                                                                                 
                                                                                                                                
8:10:16 AM                                                                                                                    
                                                                                                                                
MS. SAWYER  stated that shari'a  is offensive to U.S.  and Alaska                                                               
constitutional  law, because  it  criminalizes  [the exercise  of                                                               
freedom of  religion] and blasphemy against  Islam, Mohammed, and                                                               
shari'a,  and  violates  principles  of  due  process  and  equal                                                               
protection by discriminating against  non-Muslims and women.  She                                                               
said  almost  all Muslim  countries  -  including Egypt,  Jordan,                                                               
Afghanistan, and  Iraq - have  a shari'a supremacy  clause, which                                                               
"effectively does not allow any  secular law to violate shari'a's                                                               
fundamental principles of Islamic supremacy."                                                                                   
                                                                                                                                
MS.  SAWYER said  the  intent  of HB  88  is  neither to  inhibit                                                               
freedom of religion  nor to isolate shari'a.   She explained that                                                               
she brought  up the  topic of shari'a  because "its  religion and                                                               
civil law is linked" and "it  is the foremost foreign law that is                                                               
slowly impacting our legal system in  the U.S."  She concluded as                                                               
follows:                                                                                                                        
                                                                                                                                
     Alaska, like  other states,  recognizes a  growing need                                                                    
     to  emphasize   the  fact  that  our   state  and  U.S.                                                                    
     constitutions are  the fundamental basis for  civil law                                                                    
     for  everyone  in  our  country.    To  those  who  are                                                                    
     accustomed  to  their  religion and  their  civil  laws                                                                    
     being inextricably connected, we  must clarify that all                                                                    
     individual  rights are  guaranteed and  protected under                                                                    
     our constitutions.                                                                                                         
                                                                                                                                
8:12:40 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN,  regarding the  law of the  land, asked  if precedent                                                               
from court cases  in other countries could be used  in U.S. court                                                               
cases.                                                                                                                          
                                                                                                                                
MS. SAWYER said she cannot answer that question.                                                                                
                                                                                                                                
CHAIR LYNN  remarked that he  would not want foreign  cases cited                                                               
in a U.S. court.                                                                                                                
                                                                                                                                
8:15:22 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE JOHANSEN  ventured that  U.S. law was  most likely                                                               
originally based  on foreign law,  and he questioned  the purpose                                                               
of the proposed legislation.                                                                                                    
                                                                                                                                
8:16:04 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CARL  GATTO, Alaska State Legislature,  as sponsor                                                               
of HB  88, related that  there were many cultures  represented in                                                               
his childhood neighborhood, but the  law of the foreign countries                                                               
from which  those neighbors originally  hailed was never  used in                                                               
U.S. courts.   He offered  his understanding that  typically when                                                               
people  come to  the U.S.  from  the Middle  East they  establish                                                               
their own laws.   He said HB  88 would not allow  that to happen.                                                               
He said a  majority in a state  may decide that it  wants to pass                                                               
state laws that are in violation of the [U.S.] Constitution.                                                                    
                                                                                                                                
REPRESENTATIVE  JOHANSEN  asked  if  that is  something  that  is                                                               
happening in Alaska.                                                                                                            
                                                                                                                                
REPRESENTATIVE  GATTO offered  his understanding  that there  are                                                               
large populations of Filipino Americans  in Kodiak, but specified                                                               
that he is  not accusing them of anything.   He clarified that HB                                                               
88 is a preventative measure for the state.                                                                                     
                                                                                                                                
MS. SAWYER added that the  understanding of the Department of Law                                                               
(DOL) and  the family courts is  that Alaska has not  had foreign                                                               
law invoked into  any of its cases.   She said there  is a larger                                                               
group of  foreign nationals growing  in Anchorage.  She  said the                                                               
intent of the bill is to  preempt any future court cases [related                                                               
to the issue of foreign law].                                                                                                   
                                                                                                                                
8:20:12 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN asked how HB 88 would relate to tribal law.                                                                          
                                                                                                                                
REPRESENTATIVE  GATTO  related that  in  Canada  it is  a  timely                                                               
process  to   get  permission   to  develop   resources,  because                                                               
permission  must be  obtained from  each group  within the  First                                                               
Nations people.                                                                                                                 
                                                                                                                                
CHAIR  LYNN  clarified  that  he   wants  to  know  the  possible                                                               
interaction between Alaska tribal law and HB 88.                                                                                
                                                                                                                                
REPRESENTATIVE  GATTO  said  he cannot  make  that  determination                                                               
"because they were here first."                                                                                                 
                                                                                                                                
8:22:44 AM                                                                                                                    
                                                                                                                                
MS. SAWYER,  in response to  Representative P.  Wilson, explained                                                               
that the handout in the  committee packet entitled "American Laws                                                               
for American Courts (ALAC)"  contains frequently asked questions,                                                               
which originate from the American  Public Policy Alliance (APPA).                                                               
In response to a follow-up  question, she said both Tennessee and                                                               
Louisiana have enacted statute similar  to what is being proposed                                                               
in HB 88.   She said Oklahoma amended its  state constitution and                                                               
a lawsuit was filed by an  Islamic American group.  The judge has                                                               
put a  hold on  the enactment  of that  constitutional amendment.                                                               
She said, "That was a real shock to a lot of states."                                                                           
                                                                                                                                
8:24:15 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KELLER  observed that  there  is  no language  to                                                               
prevent a  judge from invoking  foreign law in  his/her decision.                                                               
He suggested a business contract be utilized.                                                                                   
                                                                                                                                
MS. SAWYER  said although the  sponsor recognizes that  there are                                                               
businesses  that  may  do  business that  invokes  some  type  of                                                               
foreign law, HB 88 would  focus on the protection of individuals'                                                               
rights.  She  said the sponsor is  particularly concerned because                                                               
there have been a lot of  cases in which shari'a has been invoked                                                               
in relation to children, divorce, and women's rights.                                                                           
                                                                                                                                
8:26:59 AM                                                                                                                    
                                                                                                                                
DAVID YERUSHALMI,  General Counsel,  Center for  Security Policy,                                                               
stated that  HB 88 is  similar to  the Uniform American  Laws for                                                               
American  Courts Act,  which was  drafted by  his office  and was                                                               
passed in modified form by the  State of Louisiana.  He indicated                                                               
that  other  states   are  also  using  various   forms  of  that                                                               
legislation.   He said typically  this type of  legislation deals                                                               
with  problems   that  arise  in  a   global  environment,  where                                                               
individuals  and  businesses  are  far more  likely  to  come  in                                                               
contact with  foreign jurisdictions  and foreign  laws.   He said                                                               
the  application  of foreign  law  judgment  and jurisdiction  in                                                               
state court is  far more likely to  occur today.  He  said in the                                                               
matter at hand foreign law clearly  refers to law that is outside                                                               
the territory of the U.S.                                                                                                       
                                                                                                                                
MR. YERUSHALMI listed  the following three ways  that foreign law                                                               
insinuates itself in state court  matters:  when foreign judgment                                                               
is sought to  grant comity; in matters related to  choice of law;                                                               
and in  matters related to  jurisdiction or venue questions.   He                                                               
offered examples of each.                                                                                                       
                                                                                                                                
8:33:07 AM                                                                                                                    
                                                                                                                                
MR.  YERUSHALMI  stated  that   the  Uniform  American  Laws  for                                                               
American Courts  Act deals  with all three  instances, but  HB 88                                                               
deals  only  with  choice  of  law  and  choice  of  venue.    He                                                               
paraphrased language  from HB 88,  beginning on page 1,  line 12,                                                               
to page 2, line 1, which read as follows:                                                                                       
                                                                                                                                
                    Sec. 09.68.140. Foreign law prohibited.                                                                   
     (a)  A  court,   arbitrator,  mediator,  administrative                                                                    
     agency, or  enforcement agency may not  apply a foreign                                                                    
     law if application of the  foreign law would violate an                                                                    
     individual's  right guaranteed  by the  Constitution of                                                                    
     the State of Alaska or the United States Constitution.                                                                     
                                                                                                                                
MR.  YERUSHALMI  set up  a  hypothetical  situation in  which  an                                                               
Alaskan company has  a business contract with  a Chinese company,                                                               
and in  the contract there  is a  choice of law  provision, which                                                               
states that any  disputes must be determined by Chinese  law.  He                                                               
said  in  general  Chinese  law  does not  provide  for  all  the                                                               
fundamental constitutional  liberties that Alaskan law  does.  He                                                               
continued:                                                                                                                      
                                                                                                                                
     But  that will  not  allow the  Alaskan  to avoid  that                                                                    
     provision.   The only way  the Alaskan could  avoid the                                                                    
     provision  and have  Chinese law  apply is  if in  that                                                                    
     particular case,  that particular dispute,  the Chinese                                                                    
     law   at   issue   would  [violate]   his   fundamental                                                                    
     constitutional liberties.                                                                                                  
                                                                                                                                
MR. YERUSHALMI said the question  of freedom of contract has been                                                               
raised  by  the  American  Civil Liberties  Union  (ACLU),  which                                                               
argued  that a  person should  have  the right  to waive  his/her                                                               
constitutional  liberties  at  any  time,  but  especially  in  a                                                               
business context.   He  said this  is true, but  not always.   He                                                               
said  the federal  government and  all  states abide  by a  rule,                                                               
under  which if  two parties  enter  into a  contract that  would                                                               
violate the public policy of the  state, the contract is void and                                                               
unenforceable.   He said  in order  to determine  whether parties                                                               
entering into  a contract  can waive a  fundamental right,  it is                                                               
necessary  to  consider the  analysis  of  the fundamental  right                                                               
jurisprudence.   Mr.  Yerushalmi  noted that  China  and most  of                                                               
Continental Europe do  not apply jury trials.  He  said that if a                                                               
contract [between an  Alaskan company and a company  in a country                                                               
without jury  trials] made  clear that a  jury trial  was waived,                                                               
then the  foreign law, even  without jury trial  provision, would                                                               
be sustained within the Alaskan court.                                                                                          
                                                                                                                                
MR. YERUSHALMI then  offered a hypothetical situation  in which a                                                               
non-Muslim woman enters  into a business contract  with a company                                                               
in Saudi  Arabia, with  a provision in  the contract  that states                                                               
that Saudi  laws apply.  In  the event of litigation,  as a woman                                                               
her testimony  would be worth  only half of  any man's, and  as a                                                               
non-Muslim, her  testimony would  be discounted  almost entirely.                                                               
He said  that is  a violation  of both  equal protection  and due                                                               
process, and there  is no jurisprudence in Alaska  or the federal                                                               
courts  to  allow   a  party  to  waive   those  two  fundamental                                                               
constitutional issues in  the context where it was  not known and                                                               
was non-consensual.                                                                                                             
                                                                                                                                
MR.  YERUSHALMI offered  a third  example, in  which an  American                                                               
woman, while in  Saudi Arabia, sustained an injury  diving into a                                                               
shallow end of a swimming pool  that was not clearly marked.  She                                                               
ended up in  a hospital in Massachusetts, which was  not her home                                                               
state, and  she filed a  law suit.   He said the  most convenient                                                               
forum for litigation would have  been Saudi Arabia, but the court                                                               
in the  U.S. did  not dismiss  the case,  because of  the woman's                                                               
prospects  of going  to court  in  Saudi Arabia  as a  non-Muslim                                                               
female.                                                                                                                         
                                                                                                                                
8:40:08 AM                                                                                                                    
                                                                                                                                
MR.  YERUSHALMI talked  about laws  in other  countries that  may                                                               
change  after a  contract has  been  signed and  the affect  that                                                               
being a non-national  can have in carrying forth  litigation in a                                                               
foreign  country.   Under  HB 88,  he said,  an  Alaskan in  that                                                               
circumstance  would be  protected.   Without HB  88, he  said, it                                                               
would be left up to the  courts, which would apply the common law                                                               
rule   that  if   the  foreign   law  or   jurisdiction  violates                                                               
fundamental  public   policy,  the   court  will   consider  [the                                                               
contract]  void.   He  said  what "our  law"  does  is answers  a                                                               
specific request  by the  Alaska court, which  is that  the first                                                               
place  to look  when determining  state public  policy is  to the                                                               
constitution and to the legislature.                                                                                            
                                                                                                                                
8:44:32 AM                                                                                                                    
                                                                                                                                
MR.  YERUSHALMI  directed attention  to  a  letter from  ACLU  of                                                               
Alaska, dated  3/15/11, addressed  to Chair  Lynn and  Vice Chair                                                               
Keller.  He noted that nowhere  in the letter does ACLU of Alaska                                                               
support the  proposition that the  legislature does not  have the                                                               
authority to provide  public policy, and he posited  that that is                                                               
because the  legislature has the  authority.  He  offered several                                                               
examples in which the federal  government and the State of Alaska                                                               
have  disallowed waivers  in employee  contracts  that took  away                                                               
state and federal freedoms and protections.                                                                                     
                                                                                                                                
8:48:12 AM                                                                                                                    
                                                                                                                                
MR.  YERUSHALMI  asked  ACLU  and  those who  opposed  HB  88  to                                                               
consider that in cases that  are not clear, where the legislature                                                               
has not drawn  a clear line around public  policy regarding human                                                               
rights, the court tends to reach  disparate opinions.  He said HB                                                               
88 is  a clear distinction by  the legislature that the  State of                                                               
Alaska  considers  fundamental constitutional  liberties  "public                                                               
policy red  lines."  He  concluded that the  proposed legislation                                                               
makes  clear  that  if  a   person  is  going  to  violate  those                                                               
liberties, he/she  must do  so "in a  way that  the jurisprudence                                                               
under that  right recognizes the  waiver."  He offered  to answer                                                               
questions.                                                                                                                      
                                                                                                                                
8:53:13 AM                                                                                                                    
                                                                                                                                
CHAIR  LYNN asked  if  HB  88 would  prohibit  courts from  using                                                               
precedence from foreign case law.                                                                                               
                                                                                                                                
MR. YERUSHALMI  answered that HB  88 deals with  applying foreign                                                               
law in the context of a specific  dispute.  He said if the Alaska                                                               
Supreme Court  has to  determine what  the law  of Alaska  is, it                                                               
would  first look  to the  Constitution of  the State  of Alaska,                                                               
then to  statute, common law, and  federal jurisprudence relevant                                                               
to the  issue.  He  said the only  time the Alaska  Supreme Court                                                               
would consider foreign law would be  in the context of common law                                                               
doctrine.   He said the  court could also consider  admiralty law                                                               
and the law  of war.  He stated, "There  are plenty of legitimate                                                               
occasions, in  which foreign  law informs  what Alaskan  law will                                                               
be; but once  the court ... has been informed  about what Alaskan                                                               
law is, it becomes Alaskan law."   He said HB 88 does not address                                                               
the question  of whether the  Alaska Supreme Court could  look to                                                               
English  common  law or  French  Code,  for  example; that  is  a                                                               
broader issue than  HB 88.  In response to  a follow-up question,                                                               
he confirmed that that could be  the subject for a separate bill.                                                               
He added  that that is a  problem that would more  typically rise                                                               
at the federal level - in the  U.S. Supreme Court.  He offered an                                                               
example.                                                                                                                        
                                                                                                                                
8:56:38 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON   asked  if   the  bill  would   aid  U.S.                                                               
corporations  in  their  litigation with  foreign  contracts  and                                                               
foreign  countries  in leases  that  have  been negotiated.    He                                                               
offered his  understanding that  HB 88 is  a little  broader than                                                               
the committee had previously been told.                                                                                         
                                                                                                                                
MR.  YERUSHALMI confirmed  that HB  88 would  "level the  playing                                                               
field" for Alaskan companies.   He described a situation in which                                                               
a foreign country  changed from abiding by laws  agreeable to the                                                               
Alaskan company  doing business with  a business in  that country                                                               
to a  new regime that was  not agreeable to the  Alaskan company.                                                               
He said  that without HB  88, the  Alaskan company would  have to                                                               
ask  the  Alaska  court  to void  any  provision  requiring  that                                                               
company  to do  litigation in  the foreign  country and  to allow                                                               
litigation  to  take place  in  Alaska,  arguing that  under  the                                                               
country's new  regime, basic  rights and  liberties would  not be                                                               
upheld.  Mr. Yerushalmi said HB  88 would provide guidance to the                                                               
court.                                                                                                                          
                                                                                                                                
9:01:51 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON said  the  testimony is  showing that  the                                                               
proposed bill  would be a  lot broader, because it  would address                                                               
corporate rights, not just individual rights.                                                                                   
                                                                                                                                
9:02:37 AM                                                                                                                    
                                                                                                                                
MR.  YERUSHALMI, in  response  to  questions from  Representative                                                               
Gruenberg, confirmed that  he is not licensed to  practice law in                                                               
Alaska, and  talked about his  preparation for the hearing  on HB                                                               
88.  He  clarified that the aforementioned  Uniform American Laws                                                               
for American  Courts Act was  not promulgated by the  Uniform Law                                                               
Commission.  He reiterated that  the main distinction between the                                                               
Uniform American  Laws for  American Courts  Act adopted  by some                                                               
states and  HB 88 is  that the latter  does not have  a provision                                                               
for comity.   He said he  does not know of  any other legislation                                                               
exactly  like HB  88;  however, he  stated  that the  substantive                                                               
provisions related  to choice of  law and  jurisdiction questions                                                               
are similar to the Uniform  American Laws for American Courts Act                                                               
and  other states'  legislation.   He  clarified  that a  certain                                                               
amendment to the Constitution of  the State of Oklahoma sought to                                                               
prevent  any court  from applying  international law  or shari'a,                                                               
but that  the court  held that  identifying a  specific religious                                                               
law without  clearly excising the religious  aspect would violate                                                               
the  First  Amendment.    He  said   HB  88  is  not  "a  blanket                                                               
prohibition against  international law," but is  "a very specific                                                               
and focused treatment of when  that foreign law, if applicable in                                                               
a   specific   case,   would  violate   the   fundamental   state                                                               
constitutional liberties  that have not  been weighed."   He said                                                               
HB 88 would be upheld on a First Amendment challenge.                                                                           
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  Mr.  Yerushalmi  to provide  the                                                               
citation for "that case."                                                                                                       
                                                                                                                                
9:08:49 AM                                                                                                                    
                                                                                                                                
MR.  YERUSHALMI, in  response to  a question  from Representative                                                               
Johansen,  said both  Tennessee  and Louisiana  built into  their                                                               
legislation a  "business entity exception."   He  further relayed                                                               
that since  both Tennessee and  Louisiana adopted  their statutes                                                               
within the  last year, it is  far too early for  anything to have                                                               
happened as a result.                                                                                                           
                                                                                                                                
9:13:49 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JOHANSEN  asked how  HB  88  would affect  Native                                                               
Alaskans.                                                                                                                       
                                                                                                                                
MR. YERUSHALMI  answered that any  existing treaties  would trump                                                               
the statute.  Furthermore, he said  to the extent that tribal law                                                               
has been adopted  in conjunction with state law, it  would not be                                                               
considered foreign law.   He proffered that to the  extent that a                                                               
tribal law  could still  be considered foreign  law under  HB 88,                                                               
the simple solution  would be to make an  exemption by specifying                                                               
in the bill that tribal law would not be affected.                                                                              
                                                                                                                                
REPRESENTATIVE JOHANSEN  asked Mr.  Yerushalmi if he  is familiar                                                               
with  the status  of Alaska  Native tribes  as compared  to those                                                               
tribes in the Lower 48.  He ventured that there are differences.                                                                
                                                                                                                                
MR. YERUSHALMI  reiterated that  the easy  solution would  be the                                                               
aforementioned exemption.  He added  that a more pointed solution                                                               
would be to determine whether  a specific treaty provides for the                                                               
provisions for  the treatment  of federal tribal  law in  a given                                                               
sovereign way.  If it does, he said, that would trump HB 88.                                                                    
                                                                                                                                
REPRESENTATIVE   JOHANSEN  said   although  he   appreciates  Mr.                                                               
Yerushalmi's suggestion for an easy  solution, he guarantees that                                                               
the  power, effectiveness,  and  might of  the  tribes in  Alaska                                                               
differ from those in the Lower 48.                                                                                              
                                                                                                                                
REPRESENTATIVE GATTO  said he thinks  the presence of  hotels and                                                               
casinos in  the Lower 48 established  by tribes is a  sign of the                                                               
strong independence of those tribes.                                                                                            
                                                                                                                                
REPRESENTATIVE JOHANSEN ventured that  the insertion of exemption                                                               
language may not  be as easy to accomplish for  tribes in Alaska.                                                               
He  cautioned  the  committee  to  be  careful  when  considering                                                               
exclusions  for tribes.   Echoing  Representative Seaton's  prior                                                               
remark that the bill's focus is  larger than it first appears, he                                                               
said he wants to understand  the far-reaching implications [of HB                                                               
88].                                                                                                                            
                                                                                                                                
9:21:50 AM                                                                                                                    
                                                                                                                                
CHAIR  LYNN  questioned what  would  happen  if one  of  Alaska's                                                               
Native  corporations  entered  into  a contract  with  a  foreign                                                               
entity and  there was  an attempt by  the legislature  to exclude                                                               
that corporation.                                                                                                               
                                                                                                                                
REPRESENTATIVE   JOHANSEN   noted   that  Saxman   [adjacent   to                                                               
Ketchikan] has  its own city,  corporation, and tribe, and  it is                                                               
difficult  to get  all three  in  agreement.   He clarified  that                                                               
saying  that the  corporation  would not  be  affected would  not                                                               
alleviate the concern regarding the tribe.                                                                                      
                                                                                                                                
9:25:09 AM                                                                                                                    
                                                                                                                                
MR.  YERUSHALMI, in  response to  a question  from Representative                                                               
Keller,  said the  problem with  including  corporate waivers  is                                                               
that doing so would put mom and  pop operations at risk.  He said                                                               
a  provision  could   be  added  to  allow   any  corporation  or                                                               
individual who enters into an  agreement to "explicitly waive the                                                               
operation of  this statute."  He  said he does not  think that is                                                               
necessary, because of the language  of the bill, and particularly                                                               
of the  Uniform American Laws  for American Courts Act,  which is                                                               
"dependent upon the specific existing  jurisprudence of the right                                                               
being  infirmed."   He  offered examples.    He said  legislation                                                               
tends to address  a given problem in a focused  way, and then the                                                               
courts develop  common law under  statute that is  continent with                                                               
Alaska jurisprudence.                                                                                                           
                                                                                                                                
9:29:35 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  ventured  that  the  core  reason  Mr.                                                               
Yerushalmi is urging the passage of  HB 88 is that apparently the                                                               
Alaska Supreme  Court has said  the Constitution of the  State of                                                               
Alaska and the Alaska State  Legislature determine public policy,                                                               
and  because the  legislature has  not defined  public policy  in                                                               
this area, there is a lack of guidance to the courts.                                                                           
                                                                                                                                
MR. YERUSHALMI responded that that is a fair summary.                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG  offered his understanding that  that is                                                               
not what  the courts say.   He cited AS 01.10.010,  which read as                                                               
follows:                                                                                                                        
                                                                                                                                
     Sec. 01.10.010.  Applicability of common law.                                                                              
     So much  of the  common law  not inconsistent  with the                                                                    
     Constitution   of   the   State  of   Alaska   or   the                                                                    
     Constitution  of  the United  States  or  with any  law                                                                    
     passed by  the legislature  of the  State of  Alaska is                                                                    
     the rule of decision in this state.                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  said common  law states look  to judge-                                                               
made law,  and the  courts in Alaska  have many  times enunciated                                                               
the common  law.   He said Guin  v. Ha is  a seminal  case, which                                                             
provides that  the courts will  look at the  rule of law  that is                                                               
the most reasonable public policy.   He expressed concern that HB                                                               
88  could  have  exactly  the  opposite  consequence  by  cutting                                                               
against the long-standing public policy of Alaska.                                                                              
                                                                                                                                
9:34:45 AM                                                                                                                    
                                                                                                                                
MR. YERUSHALMI said  he is familiar with the case  and statute to                                                               
which Representative  Gruenberg referred,  but said  he disagrees                                                               
with Representative Gruenberg.   He said it is not  the case that                                                               
states which  use code law, such  as California and New  York, do                                                               
not apply common  law.  Even Louisiana,  which follows Napoleonic                                                               
code, also  has a  body of  law that its  judges have  created by                                                               
interpreting.   He  said by  searching for  the words  "void" and                                                               
"public policy" it  is possible to find dozens  of Alaska Supreme                                                               
Court  cases  in which  the  court  voids contractual  provisions                                                               
entered into  by two parties.   He cited Dillingham v.  CH2M Hill                                                             
Northwest 873 p2nd 1271, a  case which quotes AS 45.45.900, which                                                             
read as follows:                                                                                                                
                                                                                                                                
                                                                                                                                
     Sec.  45.45.900.   Indemnification  agreements  against                                                                    
     public policy.                                                                                                             
     A provision,  clause, covenant, or  agreement contained                                                                    
     in,   collateral  to,   or  affecting   a  construction                                                                    
     contract  that  purports   to  indemnify  the  promisee                                                                    
     against liability  for damages for (1)  death or bodily                                                                    
     injury to  persons, (2) injury to  property, (3) design                                                                    
     defects, or  (4) other loss, damage  or expense arising                                                                    
     under (1),  (2), or (3)  of this section from  the sole                                                                    
     negligence or wilful misconduct  of the promisee or the                                                                    
     promisee's    agents,    servants,    or    independent                                                                    
     contractors  who   are  directly  responsible   to  the                                                                    
     promisee,  is against  public policy  and  is void  and                                                                    
     unenforceable; however, this  provision does not affect                                                                    
     the   validity  of   an  insurance   contract  workers'                                                                    
     compensation,  or   agreement  issued  by   an  insurer                                                                    
     subject to  the provisions  of AS  21, or  a provision,                                                                    
     clause,  covenant,  or   agreement  of  indemnification                                                                    
     respecting  the handling,  containment,  or cleanup  of                                                                    
     oil or hazardous substances as defined in AS 46.                                                                           
                                                                                                                                
MR.  YERUSHALMI  said AS  45.45.900  tells  the court  that  even                                                               
though there  is freedom of  contract, an  individual's liability                                                               
for negligent acts cannot be voided.                                                                                            
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said that  statute  is  not on  point,                                                               
because  factual   situations  are   being  discussed,   not  the                                                               
construction of Alaska laws of the past.                                                                                        
                                                                                                                                
9:38:48 AM                                                                                                                    
                                                                                                                                
MR. YERUSHALMI responded that he does  not agree.  He opined that                                                               
there is no  distinction between the two, other  than the subject                                                               
matter.                                                                                                                         
                                                                                                                                
9:40:10 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON said  he  is confused  because the  courts                                                               
said rights  cannot be waived,  but the proposal being  made here                                                               
is that waivers of specific portions  of law are fine.  He opined                                                               
that  the  big  problem  is  that  there  is  unresolved  tension                                                               
regarding  tribal law  in Alaska.   He  said tribal  authority is                                                               
sometimes challenged by  the state on the issue of  children.  He                                                               
asked  Mr. Yerushalmi  if excluding  tribal law  would mean  that                                                               
tribal law  has precedence over  Alaska statute.  In  response to                                                               
Representative  Keller,  he explained  that  his  question is  in                                                               
response to testimony that suggested an amendment to the bill.                                                                  
                                                                                                                                
9:44:55 AM                                                                                                                    
                                                                                                                                
MR.  YERUSHALMI,   regarding  the  issue  of   tribal  authority,                                                               
referred to the definition of "foreign  law" on page 2, lines 23-                                                               
25, of HB 88, which read as follows:                                                                                            
                                                                                                                                
               (f) In this section, "foreign law" means a                                                                       
     law,  rule, or  legal  code or  system established  and                                                                    
     used  or  applied  in a  jurisdiction  outside  of  the                                                                    
     United  States  and  the   territories  of  the  United                                                                    
     States.                                                                                                                    
                                                                                                                                
MR.  YERUSHALMI  said,  "So,  by definition  Indian  law  is  not                                                               
touched by the statute."   In response to Representative Seaton's                                                               
comment regarding  waivers, explained  that he  had brought  up a                                                               
possible amendment  to HB 88, but  had said it was  not necessary                                                               
because rights  that are being  protected by  HB 88 have  a clear                                                               
jurisprudence  under both  federal  and Alaska  law.   Therefore,                                                               
whether  or   not  a   party  can  waive   is  included   in  the                                                               
jurisprudence of that particular liberty.                                                                                       
                                                                                                                                
9:47:05 AM                                                                                                                    
                                                                                                                                
DAVID   HECKERT,  Volunteer,   Stop   Islamization  of   America,                                                               
testified in support of  HB 88.  He said he  is a 30-year veteran                                                               
of  the U.S.  Army, and  he listed  the names  of several  Middle                                                               
Eastern countries in  which he worked within the Army  as a civil                                                               
affairs  officer with  the local  populations, public  officials,                                                               
and international organizations.  He  relayed that he also worked                                                               
with the  Office of Military  Cooperation in the U.S.  Embassy in                                                               
Egypt for 3.5 years.   He talked about his experience interacting                                                               
with  other cultures  and working  with the  governmental, legal,                                                               
and commercial systems in those countries.                                                                                      
                                                                                                                                
MR.  HECKERT  opined,  "The  enshrining  of  our  rights  in  the                                                               
Constitution and ensuring our freedom  through the rule of law is                                                               
by far the best system for government  in the world."  He said he                                                               
has seen  a disregard for  citizens' rights in favor  of specific                                                               
agendas  based on  legal or  governmental  concepts from  foreign                                                               
countries  and international  institutions.   He said  members of                                                               
"our supreme  court" admit  that they  look to  international law                                                               
for guidance  on issues, and administrative  agencies continue to                                                               
confiscate property  and assess fines without  any proper regress                                                               
for the victims to their elected officials.                                                                                     
                                                                                                                                
MR.  HECKERT  said   HB  88  would  protect   citizens  from  the                                                               
encroachment of foreign  law into the legal system.   He said one                                                               
aspect of  foreign law that  HB 88 would be  especially effective                                                               
in deterring is Islamic shari'a law.   He posited that there is a                                                               
reluctance to admit that "we" are  at war with a large segment of                                                               
the  Islamic community,  which "seeks  to  impose the  political,                                                               
legal,  and cultural  aspects  of  Islam on  our  citizens."   He                                                               
offered some examples.                                                                                                          
                                                                                                                                
9:51:20 AM                                                                                                                    
                                                                                                                                
JEFFREY  MITTMAN,  American  Civil   Liberties  Union  (ACLU)  of                                                               
Alaska, testified in  opposition to HB 88.  He  stated that HB 88                                                               
is  problematic  in  terms  of business  law,  because  it  would                                                               
interfere with contractual issues.   Referring to a point made in                                                               
the sponsor  statement that one goal  of HB 88 is  to prevent the                                                               
imposition  of shari'a  law,  Mr. Mittman  stated  that the  U.S.                                                               
Constitution  already  governs  federal   and  state  courts  and                                                               
prevents the  imposition of  those courts  of any  religious law.                                                               
He  opined  that  the  bill,   as  drafted,  is  over  broad  and                                                               
fundamentally unnecessary.  In response  to a question from Chair                                                               
Lynn,  he  confirmed  that the  written  information  from  ACLU,                                                               
included in  the committee  packet, goes  into further  detail on                                                               
these points.  He said ACLU is  not aware of any instance where a                                                               
court has imposed  shari'a law, and he said he  thinks that is an                                                               
issue that should be addressed.                                                                                                 
                                                                                                                                
9:55:04 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON said  he would  like the  bill sponsor  to                                                               
outline how HB 88 relates to international conventions.                                                                         
                                                                                                                                
9:55:53 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG requested  that  Ms.  Sawyer provide  a                                                               
copy of all legal opinions that relate to this subject.                                                                         
                                                                                                                                
CHAIR  LYNN  suggested  that in-depth  discussion  of  the  legal                                                               
aspect of  the bill  should be  taken up  in the  House Judiciary                                                               
Standing Committee.                                                                                                             
                                                                                                                                
9:57:53 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GATTO  remarked that those in  Native corporations                                                               
and tribes  are U.S. citizens  and are subject  to U.S. law.   He                                                               
stated that the  proposed legislation would give  the courts some                                                               
boundaries.                                                                                                                     
                                                                                                                                
10:00:17 AM                                                                                                                   
                                                                                                                                
[HB 88 was held over.]                                                                                                          
                                                                                                                                
10:00:56 AM                                                                                                                   
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no  further business before the  committee, the House                                                               
State Affairs  Standing Committee meeting was  adjourned at 10:00                                                               
a.m.                                                                                                                            

Document Name Date/Time Subjects
01 HB0088A.PDF HSTA 3/17/2011 8:00:00 AM
HB 88
02 HB 88 Sponsor Statement 3-2-2011.pdf HSTA 3/17/2011 8:00:00 AM
HB 88
03 Country Legal Systems 2011 HB 88.pdf HSTA 3/17/2011 8:00:00 AM
HB 88
04 Letter SUPPORT Wood HB88 032011.pdf HSTA 3/17/2011 8:00:00 AM
HB 88
05 Letter OPPOSE HB 88 ACLU Review of Legal Issues 2011 03 15.pdf HSTA 3/17/2011 8:00:00 AM
HB 88
06 HB 88 Center for Security Policy.pdf HSTA 3/17/2011 8:00:00 AM
HB 88
07 HB 88 David Yerushalmi Law professional memberships.pdf HSTA 3/17/2011 8:00:00 AM
HB 88
08 HB 88 David Yerushalmi Law.pdf HSTA 3/17/2011 8:00:00 AM
HB 88
09 HB 88 ALAC FAQ 03-14-11.pdf HSTA 3/17/2011 8:00:00 AM
HB 88
10 HB 88 Legal Memo Bailey 3-15-11.pdf HSTA 3/17/2011 8:00:00 AM
HB 88
11 HB 88 Public Policy Alliance-Sharia Law.pdf HSTA 3/17/2011 8:00:00 AM
HB 88
12 HB088-LAW-CIV-03-13-11.pdf HSTA 3/17/2011 8:00:00 AM
HB 88
13 Letter SUPPORT Madar HB88 031011.pdf HSTA 3/17/2011 8:00:00 AM
HB 88