Legislature(1997 - 1998)
03/25/1998 02:25 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.