04/08/2015 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing: Alaska Public Offices Commission | |
| HB5 | |
| SB76 | |
| SJR15|| SCR4 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 5 | TELECONFERENCED | |
| + | SCR 4 | TELECONFERENCED | |
| SJR 15 | |||
| + | SB 76 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 8, 2015
1:40 p.m.
MEMBERS PRESENT
Senator Lesil McGuire, Chair
Senator John Coghill, Vice Chair
Senator Mia Costello
Senator Peter Micciche
Senator Bill Wielechowski
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARINGS
Alaska Public Offices Commission
Mark Fish
- CONFIRMATION ADVANCED
Commission on Judicial Conduct
George R. Boatright
POSTPONED to 4/13/15
HOUSE BILL NO. 5
"An Act relating to the persons who may be appointed
conservators of a protected person."
- MOVED SCS HB 5(JUD) OUT OF COMMITTEE
SENATE BILL NO. 76
"An Act relating to private actions and remedies against real
estate licensees for licensee relationships, disclosures, and
activity before January 1, 2005; and providing for an effective
date."
- MOVED SB 76 OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 15
Making application to the United States Congress to call a
convention of the states to propose a countermand amendment to
the Constitution of the United States as provided under art. V,
Constitution of the United States; and urging the legislatures
of the other 49 states to make the same application.
- HEARD & HELD
SENATE CONCURRENT RESOLUTION NO. 4
Relating to the duties of delegates selected by the legislature
to attend a convention of the states called under art. V,
Constitution of the United States, to consider a countermand
amendment to the Constitution of the United States; establishing
as a joint committee of the legislature the Delegate Credential
Committee and relating to the duties of the committee; providing
for an oath for delegates and alternates to a countermand
amendment convention; providing for a chair and assistant chair
of the state's countermand amendment delegation; providing for
the duties of the chair and assistant chair; providing
instructions for the selection of a convention president; and
providing specific language for the countermand amendment on
which the state's convention delegates are authorized by the
legislature to vote to approve.
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 5
SHORT TITLE: CONSERVATOR OF PROTECTED PERSONS
SPONSOR(s): REPRESENTATIVE(s) HAWKER
01/21/15 (H) PREFILE RELEASED 1/9/15
01/21/15 (H) READ THE FIRST TIME - REFERRALS
01/21/15 (H) JUD
02/06/15 (H) JUD AT 1:00 PM CAPITOL 120
02/06/15 (H) <Bill Hearing Canceled>
02/11/15 (H) JUD AT 1:00 PM CAPITOL 120
02/11/15 (H) Heard & Held
02/11/15 (H) MINUTE(JUD)
02/18/15 (H) JUD AT 1:00 PM CAPITOL 120
02/18/15 (H) Moved HB 5 Out of Committee
02/18/15 (H) MINUTE(JUD)
02/20/15 (H) JUD RPT 3DP 1NR 1AM
02/20/15 (H) DP: LYNN, KELLER, LEDOUX
02/20/15 (H) NR: CLAMAN
02/20/15 (H) AM: GRUENBERG
02/25/15 (H) TRANSMITTED TO (S)
02/25/15 (H) VERSION: HB 5
02/27/15 (S) READ THE FIRST TIME - REFERRALS
02/27/15 (S) JUD
03/16/15 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/16/15 (S) Heard & Held
03/16/15 (S) MINUTE(JUD)
03/20/15 (S) JUD AT 1:30 PM BUTROVICH 205
03/20/15 (S) Heard & Held
03/20/15 (S) MINUTE(JUD)
04/08/15 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SCR 4
SHORT TITLE: US COUNTERMAND CONVENTION DELEGATES
SPONSOR(s): SENATOR(s) STOLTZE
02/13/15 (S) READ THE FIRST TIME - REFERRALS
02/13/15 (S) STA, JUD, FIN
03/17/15 (S) STA AT 9:00 AM BUTROVICH 205
03/17/15 (S) Heard & Held
03/17/15 (S) MINUTE(STA)
03/19/15 (S) STA AT 9:00 AM BUTROVICH 205
03/19/15 (S) Heard & Held
03/19/15 (S) MINUTE(STA)
03/26/15 (S) STA AT 9:00 AM BUTROVICH 205
03/26/15 (S) Moved SCR 4 Out of Committee
03/26/15 (S) MINUTE(STA)
03/27/15 (S) STA RPT 4DP 1DNP
03/27/15 (S) DP: STOLTZE, COGHILL, HUGGINS, MCGUIRE
03/27/15 (S) DNP: WIELECHOWSKI
04/08/15 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SJR 15
SHORT TITLE: CALL FOR US COUNTERMAND CONVENTION
SPONSOR(s): SENATOR(s) STOLTZE
02/13/15 (S) READ THE FIRST TIME - REFERRALS
02/13/15 (S) STA, JUD
03/17/15 (S) STA AT 9:00 AM BUTROVICH 205
03/17/15 (S) Heard & Held
03/17/15 (S) MINUTE(STA)
03/19/15 (S) STA AT 9:00 AM BUTROVICH 205
03/19/15 (S) Heard & Held
03/19/15 (S) MINUTE(STA)
03/26/15 (S) STA AT 9:00 AM BUTROVICH 205
03/26/15 (S) Moved SJR 15 Out of Committee
03/26/15 (S) MINUTE(STA)
03/27/15 (S) STA RPT 4DP 1DNP
03/27/15 (S) DP: STOLTZE, COGHILL, MCGUIRE, HUGGINS
03/27/15 (S) DNP: WIELECHOWSKI
04/08/15 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 76
SHORT TITLE: REAL ESTATE BROKERS; LIABILITY
SPONSOR(s): JUDICIARY
03/18/15 (S) READ THE FIRST TIME - REFERRALS
03/18/15 (S) L&C, JUD
03/31/15 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
03/31/15 (S) Heard & Held
03/31/15 (S) MINUTE(L&C)
04/07/15 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
04/07/15 (S) Moved SB 76 Out of Committee
04/07/15 (S) MINUTE(L&C)
04/08/15 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
MARK FISH, Nominee
Alaska Public Offices Commission
Big Lake, Alaska
POSITION STATEMENT: Testified as nominee to the Alaska Public
Offices Commission.
ALEX HILDEBRANDT, Assistant District Attorney
Civil Division
Human Services Section
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Provided information and answered questions
related to HB 5.
DEB ETHERIDGE, Deputy Director
Division of Senior and Disabilities Services
Department of Health and Social Services (DHSS)
POSITION STATEMENT: Provided information and answered questions
related to HB 5.
DARIN COLBRY, representing himself
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 5.
NANCY MEADE, General Counsel
Administrative Staff
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: Provided information and answered questions
related to HB 5.
GENEVIEVE WOJTUSIK, Staff
Senator McGuire
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced SB 76 on behalf of the sponsor.
HOWARD TRICKEY, Attorney representing
Jack White Vista Real Estate
Anchorage, Alaska
POSITION STATEMENT: Offered supporting testimony for SB 76.
ORIN BROWN, Intern
Senator Bill Stoltze
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced SJR 15 and SCR 4 on behalf of
the sponsor.
MIKE COONS, National Director
Citizens Initiatives
Palmer, Alaska
POSITION STATEMENT: Testified in support of SJR 15 and SCR 4.
ACTION NARRATIVE
1:40:35 PM
CHAIR LESIL MCGUIRE called the Senate Judiciary Standing
Committee meeting to order at 1:40 p.m. Present at the call to
order were Senators Coghill, Costello, Micciche and Chair
McGuire. Senator Wielechowski joined the committee soon
thereafter.
^Confirmation Hearing: Alaska Public Offices Commission
CONFIRMATION HEARING
Alaska Public Offices Commission
1:42:01 PM
CHAIR MCGUIRE announced the first order of business would be a
confirmation hearing for Mark Fish to the Alaska Public Offices
Commission. She asked Mr. Fish to tell the committee about his
interest in serving on this commission.
1:42:30 PM
MARK FISH, Nominee, Alaska Public Offices Commission, Big Lake,
Alaska, said he considers it a privilege to serve Alaskans in
this capacity and has come to appreciate the confirmation
process. He related that he has served on a semi-judicial body
before and believes the committee will find him qualified. Since
the last hearing he filed his financial disclosure statement
electronically and is eager to start working to solve some of
the problems with that system.
1:43:16 PM
SENATOR WIELECHOWSKI joined the committee.
CHAIR MCGUIRE asked if he feels it's appropriate for APOC staff
and commissioners to bring complaints against lawmakers and
others who are required to file APOC reports.
MR. FISH replied it's the public's responsibility to pursue
those cases and adequate tools should be available to do so in a
fair and transparent manner.
1:46:07 PM
SENATOR MICCICHE asked him to comment on the privacy issue of
requiring elected officials and board members to list the names
of their renters in their APOC report.
MR. FISH opined that the primary role of government is to
protect individual rights. The public has the right to know what
influences their elected officials, but he questions the
propriety of providing detailed information on the financial
disclosure report about people, such as renters, who are
ancillary to the process.
SENATOR COGHILL thanked Mr. Fish for serving his country and the
work he'll do on the commission.
1:49:27 PM
CHAIR MCGUIRE motioned to forward the name Mark Fish to the full
body with individual recommendations. She reminded members that
signing the reports regarding appointments to boards and
commissions in no way reflects individual members' approval or
disapproval of the appointees, and that the nominations are
merely forwarded to the full legislature for confirmation or
rejection. Finding no objection, the name Mark Fish was
forwarded to the full body for consideration.
HB 5-CONSERVATOR OF PROTECTED PERSONS
1:50:33 PM
CHAIR MCGUIRE announced the consideration of HB 5. "An Act
relating to the persons who may be appointed conservators of a
protected person." She asked for a motion to adopt the proposed
committee substitute (CS).
1:50:47 PM
SENATOR COGHILL motioned to adopt the proposed committee
substitute for HB 5, labeled 29-LS0032\N, as the working
document.
CHAIR MCGUIRE found no objection and announced that version N
was before the committee.
1:51:16 PM
MS. SALTZMAN reviewed the changes in the CS.
Section 1 broadens the scope of who could be appointed a
conservator and a guardian in cases of a conflict of interest.
Page 1, lines 6-8, deletes the language "the person is the
spouse, adult child, parent, or sibling of the incapacitated
person and".
Section 2 adds a new subsection [g] to AS 13.26.145 on page 2,
lines 1-4, that provides an extra level of due diligence by the
court relating to the nature and scope of the conflict of
interest.
Section 3 on page 2, lines 7-8, deletes the language "the person
is the spouse, adult child, parent, or sibling of the
incapacitated person and".
Section 4 adds a new subsection [h] to AS 12.26.210 on page 2,
lines 11-15, that provides an extra level of due diligence by
the court relating to the nature and scope of the conflict of
interest.
She noted that the guardianship and conservator statutes mirror
one another so both had to be amended with the same language.
This work was done working closely with the sponsor and the
Department of Law.
CHAIR MCGUIRE thanked Ms. Saltzman for her work.
1:55:18 PM
ALEX HILDEBRANDT, Assistant District Attorney, Civil Division,
Human Services Section, Department of Law (DOL), introduced
himself.
SENATOR WIELECHOWSKI expressed the concern that removing the
language in Sections 1 and 3 could potentially create a cottage
industry for professionals and businesses to act as conservators
and charge exorbitant amounts.
MR. HILDEBRANDT pointed out that the option to have a
professional conservator or guardian already exists. Banks and
trusts generally serve in this capacity, but in Anchorage there
are also private parties that have taken on the responsibility.
He opined that the court oversight will prevent exploitation of
the vulnerable adults.
SENATOR WIELECHOWSKI asked if this would allow someone with a
potential conflict of interest to act as a conservator, and if
he is comfortable that the courts will be able to adequately
protect the vulnerable people.
MR. HILDEBRANDT acknowledged that the Department of Health and
Social Services (DHSS) has that concern about changing the
language. The hope is that the new subsections in the
guardianship and conservatorship statutes will require the court
to think about and provide written findings about whether or not
a conflict exists and whether it is or is not substantial. The
situation of an unrelated paid care provider serving as a
conservator would likely rise to the level of a substantial
conflict.
Based on his experience doing these hearings, he believes the
court would be reluctant to appoint a direct service provider.
This language intentionally mirrors the Uniform Probate Code,
which prevents direct service providers and things like a long-
term care home from being a guardian or conservator for finances
and other aspects of a person's life.
2:00:01 PM
SENATOR WIELECHOWSKI asked to hear from Department of Health and
Social Services (DHSS).
SENATOR MICCICHE asked if a spouse or step child from a former
marriage would be recognized as a relative or friend of an
incapacitated person.
MR. HILDEBRANDT responded that AS 13.26.145(d) lists the people
qualified for appointment as guardian and it includes a spouse.
SENATOR COGHILL offered his understanding that the courts are
already familiar with determining potential conflict,
substantial interest, and best interest.
MR. HILDEBRANDT agreed that those findings are already in
statute as things the court should consider. He pointed out that
this will require the court to also make a written finding.
SENATOR COGHILL asked how the court will vet the appointments.
MR. HILDEBRANDT responded that, based on his experience, the
group of people who could be appointed as a guardian or
conservator is not expanding. What is expanding is the group of
people who could be appointed with a conflict.
SENATOR COGHILL said he's trying to understand how it will play
out in court, but he generally likes the idea.
2:06:55 PM
DEB ETHERIDGE, Deputy Director, Division of Senior and
Disabilities Services, Department of Health and Social Services
(DHSS), introduced herself.
SENATOR WIELECHOWSKI asked if she had concerns with the bill.
MS. ETHERIDGE said the bill deviates from the [Uniform Probate
Code] and other standards, but DHSS is more comfortable with the
current committee substitute because it provides additional
protection by requiring the court to make the determination.
SENATOR WIELECHOWSKI asked the rationale for not allowing people
that are not the spouse, adult child, parent, or sibling to be
appointed as guardian or conservator of an incapacitated person.
MS. ETHERIDGE explained that it's considered a significant
conflict when a person can pay him or herself with money they're
controlling for somebody who is incapacitated or vulnerable.
SENATOR WIELECHOWSKI expressed concern with the way the statute
is written because it doesn't clarify what constitutes a
substantial conflict.
MS. ETHERIDGE said she couldn't alleviate the concern, but it
appears that the court could identify it as a substantial
conflict of interest if a person would be paying him or herself.
SENATOR WIELECHOWSKI asked what percentage of the people who
have applied to be a conservator in the last couple of years are
spouses, adult children, parents, or siblings.
MS. ETHERIDGE said she didn't have access to that information
but about 52 percent of the guardianship and conservatorship
reports for adult protective services are related to a family
member. She clarified that a report to adult protection is
mandatory if there is a suspicion that exploitation may be
occurring, but it doesn't necessarily mean that maltreatment or
financial exploitation has occurred.
SENATOR WIELECHOWSKI asked what oversight the court has after it
allows someone who has a conflict to watch over a vulnerable or
incapacitated person.
MS. ETHERIDGE replied there are annual reports and anyone can
file a request for a review of a guardian or conservator.
2:12:10 PM
SENATOR MICCICHE asked how many of the 52 percent she referenced
are compensated.
MS. ETHERIDGE said she doesn't have that information. Responding
to a further question, she explained that adult protective
services receives allegations about the use of the vulnerable
adult's funds that are not related to their needs. Those
allegations are investigated.
SENATOR MICCICHE asked if the conflict is that they're being
compensated for the service and they're paying themselves.
MS. ETHERIDGE replied DHSS gets allegations about using funds
for other than the needs of the vulnerable adult.
CHAIR MCGUIRE commented on the protections that are embedded in
other areas of the law.
2:14:04 PM
SENATOR WIELECHOWSKI asked how many claims DHSS receives in a
year about people who are taking advantage of a vulnerable
adult.
MS. ETHERIDGE reported that in FY2014 DHSS received 1,069
reports of self-neglect, 682 reports of neglect, 492 reports of
financial exploitation, 79 reports of exploitation of a person,
194 reports of mental abuse, 208 reports of physical abuse, 51
reports of sexual abuse, and 64 reports of abandonment. In
FY2014 DHSS received 535 allegations of financial exploitation,
investigated 492, and substantiated 20 percent of the
allegations.
SENATOR WIELECHOWSKI asked for a copy of the list.
MS. ETHERIDGE agreed.
2:16:12 PM
SENATOR MICCICHE asked if the department reviews cases as
opposed to investigating complaint-driven reports.
MR. HILDEBRANDT explained that adult protective services doesn't
automatically conduct reviews, but anyone can file asking for
one. The division is required to provide a financial report
every year and a court-appointed third party is appointed every
three years to review and assess the guardianship or
conservatorship.
2:17:45 PM
DARIN COLBRY, representing himself, Anchorage, Alaska, testified
in support of HB 5. He advised that he contacted the sponsor
about introducing the bill. He and his wife both have
conservators. His father is his conservator and his wife would
like her father-in-law to be her conservator too, but that's
prohibited because it's a substantial conflict of interest.
CHAIR MCGUIRE stated that the legislature and this committee
expect the courts to look closely and analyze the situation
carefully before appointing someone who has a substantial
conflict of interest as a guardian or conservator. The intent is
to allow people who need a conservator to have as many options
as possible.
2:22:02 PM
NANCY MEADE, General Counsel, Administrative Staff, Alaska Court
System, said she would relay that to the court but with the
understanding that judges and other judicial officers already
take very seriously the appointments of conservators and
guardians. She explained the process to become a conservator for
financial decisions or a guardian for medical decisions.
Addressing Senator Micciche's question, she advised that the
order says that someone who is not a professional company that
provides conservatorship or guardianship services on a regular
basis is considered a relative or friend and therefore must take
the training program. Those classes are offered by both the
court and executive branch.
MS. MEADE pointed out that in about 40 percent of the cases that
are filed for a guardianship or conservatorship, the court
determines that the person is not incapacitated so they do not
need protection. She said the court doesn't collect data about
how often an applicant has one of the conflicts of interest
identified in AS 13.26.210(b), but judges she polled did not
think it was extremely common. Family members usually don't have
a conflict of interest, although they often take payment from
the funds of the protected person.
Addressing a question from the previous hearing, she explained
that the power of attorney is a private contract that has to be
entered when a person has the legal capacity to enter a
contract. It can be limited in time and scope and doesn't
necessarily preclude the person from acting for him or herself
during the life of the contract. A conservatorship is a court
document that says a person is permitted to make financial
decisions for someone who is not able to make decisions for him
or herself. She noted that adult children often pay bills for
their parents and only get a conservatorship if they're
challenged by a bank or other financial entity.
2:27:33 PM
SENATOR WIELECHOWSKI asked if the requirement in Section 4 for
the court to make written findings will potentially impose a
fiscal burden on the court.
MS. MEADE said she didn't anticipate a fiscal impact, although
both Section 2 and Section 4 will add to the court's workload.
She explained how it potentially would work to comply with the
statute and ensure that if an appointment is made under
subsection (c) that everyone has thought about it and made those
best-interest findings.
SENATOR COGHILL asked if in Section 4 the conflict of interest
on page 2, line 15, should be described as a perceived conflict.
MS. MEADE replied her reading is that the wording is adequate
and appropriate. A conflict of interest necessarily exists for
subsection (h) to apply.
2:30:02 PM
CHAIR MCGUIRE closed public testimony and solicited a motion.
2:30:20 PM
SENATOR COGHILL motioned to report the Senate CS for HB 5 from
committee with individual recommendations and attached zero
fiscal note.
2:30:51 PM
SENATOR WIELECHOWSKI said he wouldn't object to moving the bill
but wanted his concerns on the record, because this is patching
a law that is very outdated when it needs a comprehensive
overhaul. He suggested that the sponsor may want to look at that
for next year.
2:32:16 PM
CHAIR MCGUIRE announced that without objection SCS HB 5(JUD) is
reported from the Senate Judiciary Standing Committee.
SB 76-REAL ESTATE BROKERS; LIABILITY
2:32:57 PM
CHAIR MCGUIRE announced the consideration of SB 76."An Act
relating to private actions and remedies against real estate
licensees for licensee relationships, disclosures, and activity
before January 1, 2005; and providing for an effective date."
GENEVIEVE WOJTUSIK, Staff, Senator McGuire introduced SB 76
speaking to the following sponsor statement: [Original
punctuation provided.]
Under AS 08.88.396, a real estate licensee acting
before January 1, 2005 was authorized to act as both a
buyer's and a seller's representative, but only after
the licensee informed both the buyer and the seller of
his or her dual agency and obtained written consent
from both. The statute, as originally enacted, did not
specify remedies if a real estate licensee (or agent)
violated its provisions.
In 2003, the Alaska Legislature acted to correct the
remedies-omission. The Legislature was concerned that
without specifying its intent with respect to
appropriate remedies in the case of a violation, a
court might feel compelled to impose the potentially
business-ending remedy of forfeiture of real-estate
sales commissions. The Legislature was particularly
concerned that this could occur in cases even where
the plaintiffs had suffered no actual damages.
In order to address this concern, the Legislature
enacted House Bill 257, legislation that fixed this
ambiguity by retroactively limiting the remedy for
violations of AS 08.88.396 to actual damages. [House
Bill] 257 passed the Legislature, was signed into law
and has been found constitutional by the Alaska
Supreme Court.
Despite the enactment of House Bill 257, and despite
the Alaska Supreme Court's determination that the law
is constitutional, questions have arisen regarding the
Legislature's intent in amending AS 08.88.396. Senate
Bill 76 is intended to make clear the Legislature's
intent when it amended AS 08.88.396 in 2003 by
specifying and clarifying that the "actual damages"
limitation of the 2003 amendment applies to all claims
that are based upon or arise out of allegations of
violations of AS 08.88.396.
The clarification is necessarily retroactive because
the Legislature enacted House Bill 29 in 2004 which,
among other things, specified that AS 08.88.396 ceased
to apply to real estate transactions as of January 1,
2005; and the Legislature desires to ensure that any
claims pre-dating the 2005 effective date of House
Bill 29 are appropriately subject to the intent of its
2003 enactment of House Bill 257.
The retroactivity of the bill is constitutional, as
provided in both U.S. Supreme Court and Alaska Supreme
Court decisions.1 This bill preserves the right of
purchasers of real estate to seek redress for actual
damages under AS 08.88.396 while ensuring that the
Legislature's intent that only actual damages be
awarded is recognized by courts hearing cases arising
within the relevant time periods.
2:35:00 PM
JEFFRY PICKETT, Staff Counsel to the Senate Judiciary Committee,
Anchorage, Alaska, proved the following sectional analysis:
Section 1 amends the wording of AS 08.88.396(e) which,
for real estate transactions that occurred before
January 1, 2005, limits civil litigation and other
remedies for the failure of a real estate licensee to
comply with certain requirements concerning
relationships with and disclosures to buyers and
sellers.
Section 2 provides that the bill applies to a real
estate transaction that occurred on or before the
bill's effective date, and to a court action related
to such a transaction pending on the effective date of
bill.
Section 3 makes sec. 1 of the bill retroactive to
January 1, 1991.
Section 4 makes the bill effective immediately.
MR. PICKETT deferred to Howard Trickey to provide the historical
context so the committee could understand the need for the bill.
2:36:52 PM
HOWARD TRICKEY, Attorney, Anchorage, Alaska, stated that he is
representing Jack White Vista Real Estate and has for a number
of years with regard to the issues that SB 76 seeks to clarify.
He explained that when [AS 08.88.396] passed initially, it did
not specify a remedy if a real estate licensee or agent violated
the dual agency provisions of the statute. In 2003 the
legislature addressed the remedies omission in House Bill 257,
limiting the remedy for a technical violation to actual damages.
The policy finding and decision was that the lack of a statutory
remedy exposed the real estate industry to potentially ruinous
class action claims. One case pending then, and still today,
sought recovery in excess of $30 million for forfeiture of
commissions for the entire period of the class. The real estate
industry supported the bill then and SB 76 today because of the
potential economic risk to the industry.
MR. TRICKEY said that SB 76 would be retroactive. Two courts
have ruled that forfeiture of commissions is not a remedy that
is provided by contract and there is no vested right to
forfeiture until judgment is entered. Therefore, it is a matter
for the legislature to appropriately address as a matter of
public policy. SB 76 seeks to clarify that the legislature
intended in 2003 that actual damages would be the sole remedy
for any claims arising out of alleged violation of the
disclosure statute.
He added that the disclosure forms and written consents were
written by the multiple listing service. In all transactions the
disclosures were made as required by statute. The problem was a
matter of timing but the disclosures were made in time for
people to withdraw from the transaction if they thought the
disclosure affected the fairness of the transaction in any way.
2:42:12 PM
SENATOR MICCICHE asked if it's common to pass legislation that
is retroactive 24 years.
CHAIR MCGUIRE replied it's not common but it has been done
before, typically when it involves cases with liability. She
said she was comfortable because the bill reaffirms the policy
the legislature put in place initially using a common law
principle.
SENATOR MICCICHE asked about instances of gross negligence and
if the exception allows for costs above actual damages that may
be more ancillary.
2:45:39 PM
MR. TRICKEY explained that this legislation does not affect a
claim someone might bring for gross negligence and the damages
that might be recovered from that cause of action. SB 76 simply
limits the remedies for the statutory violations.
SENATOR COGHILL questioned why the statutory provision has to be
clarified because of the common law principle.
MR. TRICKEY explained that the court recognized that the
legislature intended damages for statutory violations to be
limited to actual damages, and later circumvented the
legislative intent saying that statutory violations could be
presented as evidence of a breach of the common law duty of
loyalty and disclosure. The legal case involves a windfall for
the plaintiffs and their lawyers because nobody suffered any
damages or actual harm.
CHAIR MCGUIRE closed public testimony and solicited a motion.
2:48:48 PM
SENATOR COGHILL motioned to report SB 76 from committee with
individual recommendations and attached zero fiscal note.
CHAIR MCGUIRE announced that without objection, SB 76 is
reported from the Senate Judiciary Standing Committee.
SJR 15-CALL FOR US COUNTERMAND CONVENTION
SCR 4-US COUNTERMAND CONVENTION DELEGATES
2:49:28 PM
CHAIR MCGUIRE announced the consideration of SJR 15 and SCR 4.
2:49:40 PM
ORIN BROWN, Intern, Senator Bill Stoltze introduced SJR 15 and
SCR 4 on behalf of the sponsor, speaking to the following
sponsor statement: [Original punctuation provided.]
Recent actions taken by the Federal Government
constitute an unprecedented level of overreach in
Alaska.
SJR 15 and SCR 4 seek to restore the balance of power
between the states and federal government. The pair of
resolutions would strengthen state sovereignty by
providing states with veto (countermand) power over
federal decisions deemed not in their best interest by
establishing an amendment to the U.S. Constitution.
These two resolutions in tandem are intended to start
the process of amending the US Constitution via the
powers granted in Article V.
SJR 15 (The Application) provides Alaska's call to
Congress for a clearly defined, single-issue
Countermand Amendment Convention. The Countermand
Amendment to the United States Constitution, when
ratified, will allow states to propose Countermand
Initiatives, which upon approval by three-fifths of
the state legislatures, will repeal any federal
statute, executive order, judicial decision, or
regulatory decision listed in the Initiative.
SCR 4 (The Delegate Resolution) enables the state
legislature to institute parameters for the
convention, ensuring that a "runaway convention" is
not possible, and provides for a productive, safe and
timely process. The Delegate Resolution establishes a
Credential Committee for selection of delegates to the
convention, and outlines the duties of the delegates.
SCR 4 also includes the language of the proposed
Countermand Amendment to the U.S. Constitution.
These two resolutions do not pertain to a conservative
versus liberal agenda; this is a state versus federal
issue. Passage of these resolutions is an actionable
step the Legislature can take toward restoration of
the proper balance of state and federal powers.
2:52:46 PM
MIKE COONS, National Director, Citizens Initiatives, Palmer,
Alaska, testified in support of SJR 15 and SCR 4. He described
SJR 15 as the vehicle to get the ball rolling and SCR 4 as the
key. SJR 15 defines the convention rules, the function of the
delegates, the language of the amendment, and that state
legislators are in control of the delegates and the ultimate
outcome of the convention. SCR 4 defines the convention.
He discussed the credentials committee explaining that
legislators will appoint the delegates, establish the rules, and
provide guidance during the convention. He said that some states
may want to make amendments to the Countermand Amendment
language and those would be brought to the legislature for
approval or denial. Once 26 states vote to approve the language,
the convention would end and the language would be forwarded to
Congress for the ratification process. He clarified that 34
states are needed to make an application for the convention and
26 or more states are needed for a quorum to pass the amendment.
He stressed that this convention follows art. V, Constitution of
the United States. Each state has one vote so Alaska has the
same authority as New York.
MR. COONS reported that following ratification the vision is to
assemble a national strategy steering committee to research the
federal rules, regulations, laws, executive orders, and judicial
decisions that are of most concern to the freedoms, liberties,
and direction of the states. The committee then would pass
resolutions to repeal the problems and submit the proposed
resolution to the state legislatures for committee hearings and
final passage. This process has citizen involvement at the
grassroots level.
2:59:17 PM
SENATOR COGHILL expressed hope that Mr. Coons would return for a
subsequent hearing because time was short today to debate the
issue.
CHAIR MCGUIRE solicited a motion to adopt the proposed judiciary
versions of the resolutions.
3:00:00 PM
SENATOR COGHILL motioned to adopt the work draft committee
substitute (CS) for SJR 15, labeled 29-LS0425\H, as the working
document.
CHAIR MCGUIRE announced that without objection, version H was
before the committee.
3:00:37 PM
SENATOR COGHILL motioned to adopt the work draft committee
substitute (CS) for SCR 4, labeled 29-LS0548\W, as the working
document.
CHAIR MCGUIRE announced that without objection, version W was
before the committee.
SENATOR COGHILL offered his understanding that the committee
substitutes contain conforming language that the House is also
considering.
[SJR 15 and SCR 4 were held in committee for further
consideration.]
3:00:56 PM
There being no further business to come before the committee,
Chair McGuire adjourned the Senate Judiciary Standing Committee
meeting at 3:00 p.m.