Legislature(1997 - 1998)
03/25/1998 02:25 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
March 25, 1998
2:25 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Drue Pearce, Vice-Chairman
Senator Mike Miller
Senator Sean Parnell
MEMBERS ABSENT
Senator Johnny Ellis
COMMITTEE CALENDAR
SENATE BILL NO. 295
"An Act relating to children and crimes involving children."
- MOVED CSSB 295(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 199
"An Act relating to the property, transactions, and obligations of
spouses; relating to the augmented estate; amending Rule 301,
Alaska Rules of Evidence; and providing for an effective date."
- MOVED CSHB 199(JUD) OUT OF COMMITTEE
SENATE BILL NO. 304
"An Act relating to regulation of highways and motor vehicles; and
providing for an effective date."
- MOVED SB 304 OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 295 - No previous action to report.
SB 304 - See Transportation minutes dated 2/24/98, 3/19/98 and
Rules minutes dated 4/1/98 & 4/3/98.
HB 199 - See Labor and Commerce minutes dated 3/5/98.
WITNESS REGISTER
Senator Dave Donley
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented SB 304
Mr. Duane Udland
Chief, Anchorage Police Department
4501 S. Bragaw
Anchorage, Ak 99507
POSITION STATEMENT: Commented on SB 304
Mr. Douglas Blattmachr
President, Alaska Trust Co.
1029 West 3rd
Anchorage, Ak 99501
POSITION STATEMENT: Supported HB 199
Mr. Don Bowman
Alaska State Troopers
5700 E. Tudor Road
Anchorage, Ak 99507
POSITION STATEMENT: Commented on SB 304
Mr. Ted Bachman
Captain, Alaska State Troopers
Alaska State Troopers
5700 E. Tudor Road
Anchorage, Ak 99507
POSITION STATEMENT: Commented on SB 295
ACTION NARRATIVE
TAPE 98-23, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 2:25 p.m. and brought up SB 295 as the first order of
business.
SB 295 - LURING OR ENTICING A CHILD
SENATOR PARNELL, sponsor of SB 295, said the bill has two goals;
first to provide an additional tool for law enforcement and second,
to codify the role of the Department of Family and Youth Services
(DFYS). SENATOR PARNELL stated that section one of the bill creates
a crime of luring or enticing a child under 12 into a building,
dwelling or vehicle for an unlawful purpose. This section gives the
prosecution another tool in fighting crime and can be especially
helpful in charging people of crimes against children. SENATOR
PARNELL said the bill will allow for law enforcement to be the lead
agency in any criminal investigation, though DFYS will still be the
main point of contact for any reports of abuse or neglect of
children.
MS. ANNE CARPENETI, representing the Department of Law, Criminal
Division, remarked that the intent of the bill is good but her
department has a few concerns, beginning with the broad scope of
the bill. MS. CARPENETI said the act that is prohibited may be
overly vague and could be tough to prove. MS. CARPENETI also
commented that the affirmative defense laid out in paragraph C is
unnecessary and she recommends it be deleted. CHAIRMAN TAYLOR asked
if MS. CARPENETI had any other recommendations and she replied that
the committee may consider making the crime a C felony rather than
a B felony, as it is likely to cover less serious offenses than
attempted kidnaping and related crimes.
Number 100
SENATOR PARNELL asked if there are cases that this statute would
cover and MS. CARPENETI replied that there may be a few, but if
they could not prosecute another type of crime, they would not
likely be able to prosecute this crime.
SENATOR PARNELL stated that the bill seemed most beneficial as a
bargaining tool and MS. CARPENETI replied "possibly". SENATOR
PARNELL asked if it could help police get a warrant and again MS.
CARPENETI thought it might, restating her point that it would be
better as a C felony.
MR. DUANE UDLAND, Chief of the Anchorage Police Department (APD),
agreed with MS. CARPENETI's suggestion to change this to a class C
felony, which he feels is more appropriate. CHIEF UDLAND also
suggested that the committee might choose to adopt an amendment to
register people who commit this crime as sex offenders, as sex is
the object in most of these crimes. SENATOR PARNELL asked if he
recommended that anyone convicted of this crime should be required
register. CHIEF UDLAND replied yes, saying it may, however, be
difficult to prove a sexual motive.
MR. CHRIS STOCKARD, representing the Department of Public Safety,
agreed with the Chief and MS. CARPENETI about changing this to a
C felony. He said the department is neutral on section two; the
department has good relationships and protocols currently in place,
but has no objection to this section as long as there is no
intention for the police to take over the lead role in any non-
criminal screening procedures. SENATOR PARNELL said the intent is
clearly to give the police the lead role only in criminal
investigations due to their superior training and interview
techniques.
MS. SUSAN WICKER, representing the Department of Health, Education
and Social Services (DHESS) for the Department of Law, agreed with
the comments of MR. STOCKARD and noted that current statute
requires the automatic reporting of any actual or suspected abuse
of children to DHESS. MS. WICKER also restated that there are
cooperative protocols between police and DHESS that ensure that
law enforcement takes the lead in criminal cases and, in dual
investigations, both departments jointly conduct a videotaped
interview where it is possible. She concluded that this is already
being done and the law is unnecessary.
CHAIRMAN TAYLOR moved to delete all of paragraph C and its
subparts, and change the felony from class B to a class C. SENATOR
PARNELL stated he had no objection to this and was doing it on the
advice form the Department of Law that these things are already
covered in current law. Without objection, it was so ordered.
CHAIRMAN TAYLOR commented that he shared MS. CARPENETI's concerns
about the broad scope of the legislation.
SENATOR MILLER moved CSSB 295 (JUD) out of committee with
individual recommendations. Without objection, it was so ordered.
HB 199 - COMMUNITY PROPERTY
REPRESENTATIVE JOE RYAN, prime sponsor of HB 199, testified that
the bill allows, by election, community property for married
couples for some or all of their assets. This allows them to take
advantage of a step up in basis when one of the partners dies,
without capital gains liability. REPRESENTATIVE RYAN said this bill
will allow Alaskan citizen to keep some of the money they earn
during their lifetime rather than paying it out in taxes. He
stressed this is purely an elective option and they included a
strong caution to ensure that the female spouse obtain legal
counsel so she fully understands what the agreement means and does
not get taken advantage of. CHAIRMAN TAYLOR interjected that he
hoped REPRESENTATIVE RYAN included this caution in gender neutral
language.
REPRESENTATIVE RYAN said the second benefit of this bill is related
to the newly established Alaska Trust Act which would allow people
to deposit assets into the Alaska Trust and declare them community
property, giving them the benefit of the step up in basis.
REPRESENTATIVE RYAN said the bill has many upsides and he has not
found any downside. He encouraged the committee to forward the
bill.
MR. DICK THWAITES, an attorney specializing in estate and gift
taxes, explained that most states are "separate property" states,
as opposed to "community property" states. In 1981, with the
enactment of the unlimited marital deduction for federal estate tax
purposes, it became very advantageous for the surviving spouse, in
the event of one spouse's death, to hold community property. MR.
THWAITES said Alaska can reap the benefits of both separate and
community property status by following the example of Oklahoma and
adopting an optional community property device.
MR. THWAITES gave an example to demonstrate the benefits of the
bill, and reported that the bill will allow an elective step up in
basis on a property by property basis. He said it creates no new
concern for judges, as they already deal with community property
issues brought to Alaska by couples with community property from
other states. MR. THWAITES concluded that the bill would provide
many benefits, and as an elective provision, would not take away
any of the advantages of separate property.
SENATOR PARNELL asked if the election to choose community property
could be made at any time and MR. THWAITES replied it could.
SENATOR PARNELL asked if there are any other states who have
adopted it. MR. THWAITES replied that every state was going to
community property in 1938 until Congress repealed it. He said
there are circumstances where couple would want to retain separate
property. Recently, Wisconsin adopted a provision whereby all
property is community property unless people opt out. The bill
before the committee was modeled after this but with a change
allowing people to opt in.
SENATOR PARNELL asked MR. THWAITES if he envisioned any
Constitutional problems. MR. THWAITES did not.
CHAIRMAN TAYLOR remarked that this seems to provide an tremendous
tool for trusts and people advising others in estate planning.
CHAIRMAN TAYLOR asked if there were any down sides of the bill in
regards to divorce. MR. THWAITES said the bill requires a 50/50
split in divorce, unless there was a prenuptial agreement or the
court chooses to reallocate the assets. CHAIRMAN TAYLOR confirmed
that the court could still make a fair and equitable settlement and
community property would be by election of both parties only. MR.
THWAITES told CHAIRMAN TAYLOR that was correct, and the election
could be undone by the consent of both parties. SENATOR PARNELL
asked why this was so and MR. THWAITES explained that both parties
have property rights as a result of this status and one party
cannot force the liquidation of the other parties interest,
therefore, the dissolution must be consensual.
Number 418
MR. DOUGLAS BLATTMACHR, President of the Alaska Trust Company,
voiced his strong support for the bill which he said will help
married couples and bring business to Alaska, without any detriment
to the State.
MR. DAVE SHAFTEL, an Anchorage attorney specializing in estate
planning, also supported the bill, testifying to the fact that it
will provide Alaskans with a significant tax benefit already
available to residents of community property states. He said the
fact that the bill is elective makes it more attractive, and agreed
with REPRESENTATIVE RYAN that there is no downside to the bill.
CHAIRMAN TAYLOR asked if there were other people wishing to testify
on the bill. Hearing none, the chair entertained a motion by
SENATOR PARNELL to move the bill from committee with individual
recommendations. Without objection, it was so ordered.
SB 304 - REGULATION OF MOTOR VEHICLES & HWYS
SENATOR DAVE DONLEY, prime sponsor of SB 304, presented the bill
and said the bill does two things: first, it doubles fines for
traffic violations committed in work zones and second, it adds a
law requiring drivers to stay to the right on a divided highway
unless it is necessary to move to the left.
SENATOR MILLER agreed with the first part of the bill but expressed
concern about the second, saying sometimes older people tend to
drive in this lane and he is not sure we want to cite them. SENATOR
DONLEY said there had been other provisions in the bill, these were
the two that had survived.
SENATOR DONLEY said the bill will facilitate the flow of traffic
and leave the left lane open for passing, for left turns and for
use when dictated by traffic.
SENATOR PEARCE commented that there is no need to give the troopers
another nitpicky reason to stop people. SENATOR DONLEY replied that
most states have this rule and Alaska has not had it due to the
absence of divided highways. SENATOR DONLEY said Alaskans therefore
have no knowledge of how to drive on a divided highway. He added
that the fine for this offense would be capped at $50.
Number 500
MR. DON BOWMAN, Alaska State Trooper, testified in opposition to
section two of the bill, saying it is unnecessary as driving under
the speed limit in the left hand lane is already prohibited.
CHAIRMAN TAYLOR asked MR. BOWMAN if he worked patrol and MR. BOWMAN
replied he currently did not. CHAIRMAN TAYLOR noted he has traveled
a lot lately and has seen cars passing on the right as often as on
the left.
SENATOR PARNELL suggested the committee consider amending the bill.
Without further discussion, SENATOR PARNELL moved the bill from
committee with individual recommendations. Without objection, it
was so ordered.
With no further business before the committee, they were adjourned.
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