Legislature(1997 - 1998)

03/25/1998 02:25 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              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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