Legislature(2021 - 2022)BUTROVICH 205

03/15/2021 01:30 PM JUDICIARY

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Audio Topic
01:35:43 PM Start
01:36:37 PM Briefing: Lawsuit on Governor Appointees
02:16:01 PM SB90
03:01:34 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Lawsuit on Governor's Appointees TELECONFERENCED
Megan Wallace, Legislative Legal
Heard & Held
-- Invited & Public Testimony --
+ Bills Previously Heard/Scheduled TELECONFERENCED
+ Consideration of Governor's Appointees TELECONFERENCED
-- Public Testimony --
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 15, 2021                                                                                         
                           1:35 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Lora Reinbold, Chair                                                                                                    
Senator Mike Shower, Vice Chair                                                                                                 
Senator Shelley Hughes                                                                                                          
Senator Robert Myers                                                                                                            
Senator Jesse Kiehl                                                                                                             
MEMBERS ABSENT                                                                                                                
COMMITTEE CALENDAR                                                                                                            
BRIEFING: LAWSUIT ON GOVERNOR APPOINTEES                                                                                        
     - HEARD                                                                                                                    
SENATE BILL NO. 90                                                                                                              
"An Act relating  to wills and the probate of  wills; relating to                                                               
the making, witnessing, self-proving,  revocation, and probate of                                                               
wills  by electronic  means; relating  to the  choice of  law for                                                               
execution of  wills; relating to  the certification of  copies of                                                               
wills; relating  to the establishment  of the validity of  a will                                                               
before death; and providing for an effective date."                                                                             
     - HEARD & HELD                                                                                                             
SENATE BILL NO. 90                                                                                                              
"An Act relating  to wills and the probate of  wills; relating to                                                               
the making, witnessing, self-proving,  revocation, and probate of                                                               
wills  by electronic  means; relating  to the  choice of  law for                                                               
execution of  wills; relating to  the certification of  copies of                                                               
wills; relating  to the establishment  of the validity of  a will                                                               
before death; and providing for an effective date."                                                                             
     - HEARD & HELD                                                                                                             
CONFIRMATION HEARING:                                                                                                           
Commission on Judicial Conduct                                                                                                
Aldean Kilbourn - Fairbanks                                                                                                     
     - SCHEDULED BUT NOT HEARD                                                                                                  
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB 90                                                                                                                   
SHORT TITLE: ELECTRONIC WILLS                                                                                                   
SPONSOR(s): SENATOR(s) MYERS                                                                                                    
02/22/21       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/22/21       (S)       JUD, L&C                                                                                               
03/03/21       (S)       JUD AT 1:30 PM BUTROVICH 205                                                                           
03/03/21       (S)       Heard & Held                                                                                           
03/03/21       (S)       MINUTE(JUD)                                                                                            
03/15/21       (S)       JUD AT 1:30 PM BUTROVICH 205                                                                           
WITNESS REGISTER                                                                                                              
MEGAN WALLACE, Director                                                                                                         
Legislative Legal Services                                                                                                      
Legislative Affairs Agency                                                                                                      
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Provided a briefing on the lawsuit on                                                                     
governor appointees.                                                                                                            
ABIGAIL O'CONNOR, Attorney                                                                                                      
O'Connor Law Office, LLC                                                                                                        
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Answered questions during the discussion of                                                               
SB 90.                                                                                                                          
CHELSEA RIEKKOLA, Attorney                                                                                                      
Foley & Pearson                                                                                                                 
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Answered questions during the discussion of                                                               
SB 90.                                                                                                                          
NANCY MEADE, General Counsel                                                                                                    
Alaska Court System                                                                                                             
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Answered questions during the discussion of                                                               
SB 90.                                                                                                                          
ACTION NARRATIVE                                                                                                              
1:35:44 PM                                                                                                                  
CHAIR  LORA   REINBOLD  called  the  Senate   Judiciary  Standing                                                             
Committee meeting  to order at 1:35  p.m. Present at the  call to                                                               
order  were  Senators Kiehl,  Myers,  Hughes,  Shower, and  Chair                                                               
^BRIEFING: Lawsuit on Governor appointees                                                                                       
            BRIEFING: Lawsuit on Governor Appointees                                                                        
1:36:37 PM                                                                                                                    
CHAIR REINBOLD  announced that the business  before the committee                                                               
would be a briefing on the Lawsuit on Governor Appointees.                                                                      
1:37:42 PM                                                                                                                    
MEGAN WALLACE, Director,  Legislative Legal Services, Legislative                                                               
Affairs Agency, Juneau,  Alaska, began a briefing  on the ongoing                                                               
and pending lawsuit between the  Legislative Council and Governor                                                               
Dunleavy regarding  governor appointees that happened  during the                                                               
regular session last year.                                                                                                      
MS. WALLACE  provided background information. In  March 2020, the                                                               
legislature did  not meet  in joint  session to  confirm governor                                                               
appointees  due to  public health  concerns related  to COVID-19.                                                               
Instead, the  legislature passed  House Bill 309,  which extended                                                               
the timeframe  that the legislature  could meet in  joint session                                                               
to confirm governor appointees to  30 days upon expiration of the                                                               
governor's March 2020 disaster  declaration. Since the governor's                                                               
disaster  declaration expired  on November  15, 2020  that meant,                                                               
under the bill,  that governor appointees expired  30 days later.                                                               
One provision in the bill stated  that if the legislature did not                                                               
confirm the appointments, it would  be tantamount to declination.                                                               
She  reported  that  30  days   after  the  March  2020  disaster                                                               
declaration  expired,  the  governor   issued  a  letter  to  the                                                               
presiding officers  stating he would  extend the  appointments of                                                               
the  pending  appointees.  Governor Dunleavy  indicated  that  he                                                               
considered   their  appointments   valid,  so   appointees  could                                                               
continue to serve.                                                                                                              
MS.  WALLACE  stated  that  based  on  that  letter,  Legislative                                                               
Council voted to  file a lawsuit asking the court  to enforce the                                                               
provisions  of  House  Bill  309 and  the  existing  statute,  AS                                                               
39.05.080.   The  Legislative   Council   sought  a   preliminary                                                               
injunction to stop  the appointees from acting  from December 15,                                                               
2020  through  the beginning  of  the  32nd Legislative  session,                                                               
which convened  on January  19, 2021.  The Juneau  Superior Court                                                               
denied Legislative Council's  request for preliminary injunction.                                                               
However, ruling was not on the  merits of the case, so the matter                                                               
proceeded through  the Superior  Court. Since the  matter related                                                               
to substantive  legal issues  and no disputes  of fact,  the case                                                               
went  directly  to  summary judgment  briefing.  After  extensive                                                               
briefing,  on  February 18,  Judge  Pallenberg  issued a  summary                                                               
judgment  opinion,  ruling  that the  governor  appointments  did                                                               
expire and were  tantamount to declination on  December 15, 2020.                                                               
Further,  the court  ruled  that the  governor  lacked the  legal                                                               
authority to extend those appointments  under Article 3, Sections                                                               
25, 26, or  27 of the Alaska Constitution. Based  on that summary                                                               
judgment  order a  final judgment  was  entered in  favor of  the                                                               
legislature on  February 25,  2021. Shortly  thereafter, Governor                                                               
Dunleavy filed a notice of appeal in the Alaska Supreme Court.                                                                  
MS. WALLACE  stated that this  matter is still  under litigation,                                                               
currently being  briefed in the  Alaska Supreme Court  (ASC). She                                                               
anticipated  that ASC  would issue  a decision  in early  to mid-                                                               
April. One  key question or issue  that arose is what  impact the                                                               
lawsuit or decision has on  the legislature's ability to consider                                                               
governor appointments this legislative session.                                                                                 
1:43:15 PM                                                                                                                    
MS.  WALLACE  stated there  has  never  been  a dispute  that  AS                                                               
39.05.080 (B)(3) indicates  the person whose name  is refused for                                                               
appointment by the  legislature may not be appointed  to the same                                                               
position  or  membership  during   the  interim  between  regular                                                               
legislative  sessions.  Nor has  there been  a  dispute that  the                                                               
governor  had the  authority to  reappoint  appointees, who  were                                                               
considered rejected by  law via House Bill 309,  at the beginning                                                               
of  this  legislative session.  In  fact,  on January  19,  2021,                                                               
Governor Dunleavy  reappointed most  of the individuals  who were                                                               
considered rejected. However, nothing  about the lawsuit prevents                                                               
the legislature  from continuing its normal  confirmation process                                                               
this  legislative  session.  This   means  the  legislature  will                                                               
operate  under  AS  39.05.080, which  governs  the  procedure  of                                                               
appointments, she said.                                                                                                         
1:44:35 PM                                                                                                                    
SENATOR   HUGHES   related   her  understanding   that   Governor                                                               
Dunleavy's appointments made from  January 19, 2021 going forward                                                               
were not affected. However, there  is a "doughnut hole" situation                                                               
to address for appointments made  during the period from December                                                               
15, 2020  until January  19, 2021. She  asked if  the legislature                                                               
could retroactively approve governor  appointees. If so, it could                                                               
save public dollars being spent on litigation, she said.                                                                        
MS.  WALLACE  answered that  she  was  unsure what  options  were                                                               
available  to  the  legislature   to  retroactively  confirm  the                                                               
appointments  made  last  session. Since  the  governor's  office                                                               
filed an  appeal, unless  the parties resolve  the issues  or the                                                               
governor withdraws his appeal,  Legislative Council will continue                                                               
to litigate the issue.                                                                                                          
1:46:42 PM                                                                                                                    
SENATOR  HUGHES recalled  a similar  action in  which Legislative                                                               
Council  ratified the  RPL process  to ensure  the actions  taken                                                               
were  constitutional. She  wondered if  it would  be possible  to                                                               
ratify  and retroactively  approve  the  appointments. She  asked                                                               
whether  any board  or commission  took actions  between December                                                               
15,  2020  and January  19,  2021,  since  that action  would  be                                                               
considered invalid.                                                                                                             
MS.  WALLACE  agreed that  the  legislature  sometimes has  taken                                                               
action to  ratify past  events. However, she  was unsure  that it                                                               
was  possible  to  do  so  for  confirmations.  She  related  her                                                               
understanding  that several  boards  met.  However, the  Superior                                                               
Court did  not render  a decision on  any specific  actions board                                                               
members might  have taken during  that period. If anyone  were to                                                               
challenge the actions  of the affected appointees, it  would be a                                                               
separate and  independent legal challenge, she  said. She offered                                                               
to research this and report back to the committee.                                                                              
1:49:13 PM                                                                                                                    
SENATOR MYERS  summarized his understanding  of the  briefing. He                                                               
stated that the original statute  confirming board and commission                                                               
appointments  indicated  the  legislature  shall  meet  in  joint                                                               
session. The  legislature passed  House Bill  309, which  gave an                                                               
option  to the  legislature  if  it did  not  meet. However,  the                                                               
legislature did  not meet  in joint session  due to  COVID-19, it                                                               
did not pass  permission to operate remotely and it  did not call                                                               
itself  into special  session, he  said. Governor  Dunleavy could                                                               
also have called the legislature  into special session but he did                                                               
not do so.                                                                                                                      
MS. WALLACE agreed  with his assessment that  the legislature did                                                               
not  reconvene after  it adjourned  last  legislative session  to                                                               
take up confirmations or any other legislation.                                                                                 
SENATOR  MYERS asked  if  a future  legislature  could decide  to                                                               
simply not  hold a joint session,  thereby disqualifying governor                                                               
appointments to hamstring the governor.                                                                                         
MS.  WALLACE responded  that she  did  not want  to speculate  on                                                               
that. She  reported that  AS 39.05.080 has  been in  effect since                                                               
1964. This statute states that  the failure of the legislature to                                                               
act,  confirm   or  decline  results  in   an  appointment  being                                                               
tantamount to declination.  She highlighted that this  has been a                                                               
longstanding  procedural  statute.  As   far  as  she  knew,  the                                                               
legislature  has  never exercised  that  statute  as a  means  to                                                               
decline a large  number of appointees. Last year,  the reason the                                                               
legislature  did  not  meet  in  joint  session  to  confirm  the                                                               
appointees was due to COVID-19 public health concerns.                                                                          
1:52:10 PM                                                                                                                    
SENATOR MYERS  surmised that  this could be  an instance  where a                                                               
party might  be right  legally, but not  morally. He  offered his                                                               
view  that  the statutes  might  give  the legislature  power  it                                                               
should not  have and allow  it to avoid its  duty. He said  he is                                                               
uncomfortable with that possibility.                                                                                            
1:53:02 PM                                                                                                                    
SENATOR  SHOWER pointed  out that  the  legislature attempted  to                                                               
pass a  remote operation bill,  but it  was thwarted. He  said he                                                               
hoped the  legislature would pass a  bill to allow it  to operate                                                               
remotely so  the legislature can  do its duty. He  echoed earlier                                                               
comments  that the  governor could  have  called the  legislature                                                               
into special session did not do  so. However, he was never polled                                                               
by Senate  leadership on  whether he  was in  favor of  holding a                                                               
special  session. He  offered his  view  that the  responsibility                                                               
rests with both parties.                                                                                                        
1:54:39 PM                                                                                                                    
SENATOR  HUGHES agreed.  In  fact, as  the  legislature works  on                                                               
disaster  legislation  it should  put  in  provisions to  trigger                                                               
remote operations  and suspend the  Uniform Rules, she  said. She                                                               
stated that  the governor could  have left the  positions vacant.                                                               
She further asked  if boards and commissions  were prevented from                                                               
meeting their statutory obligations by the governor's actions.                                                                  
MS. WALLACE responded  that this was difficult for  her to answer                                                               
since she  is not aware  of what  matters were before  the boards                                                               
and commissions.  She acknowledged  that the governor  could have                                                               
advised the  board not to meet  or the governor could  have asked                                                               
the appointees in question not  to participate in those meetings.                                                               
He could then have reappointed board members who were affected.                                                                 
1:56:33 PM                                                                                                                    
SENATOR HUGHES expressed  concern about the time  and money spent                                                               
by the  legislature, executive  branch and  the judiciary  on the                                                               
lawsuit.  She  asked for  an  estimate  of  costs for  all  three                                                               
branches  of   government  on  this  litigation.   She  asked  if                                                               
Legislative Legal Services  itemizes its time in  the same manner                                                               
that private sector attorneys track time spent on cases.                                                                        
MS.  WALLACE responded  that  Legislative  Legal attorneys  track                                                               
litigation time  to a  certain extent. However,  she said  she is                                                               
not  aware of  any extra  costs  this litigation  caused for  the                                                               
legislative branch since it is  being handled in house within the                                                               
agency's regular budget.                                                                                                        
1:58:10 PM                                                                                                                    
CHAIR  REINBOLD asked  if  the legislature  should  add a  remote                                                               
operation option in the disaster declaration bill.                                                                              
MS.  WALLACE responded  that  it  would be  difficult  to take  a                                                               
position  as to  whether the  legislature should  adopt permanent                                                               
remote voting  or other remote legislative  proceeding protocols.                                                               
She said this is a policy  call for the legislature. With respect                                                               
to  the ongoing  pandemic,  the legislature  should consider  the                                                               
possibility a sudden widespread outbreak  could occur. If so, the                                                               
legislature  might not  be able  to meet  or establish  a quorum.                                                               
Thus, the  legislature may wish  to adopt provisions  for holding                                                               
remote sessions to  avoid a long recess or an  inability to meet.                                                               
Once COVID-19  ends, there may  be future events  the legislature                                                               
should consider  planning for, such  as earthquakes,  other major                                                               
disasters or health-related disasters.  She said these are policy                                                               
decisions for the legislature to consider.                                                                                      
2:02:53 PM                                                                                                                    
CHAIR REINBOLD  remarked she  was unsure  when the  pandemic will                                                               
end given that  different strains of the virus  were cropping up.                                                               
She  asked for  an  explanation about  the emergency  Legislative                                                               
Council meeting action to delegate authority to its Chair.                                                                      
MS. WALLACE  responded that Legislative  Council recently  held a                                                               
meeting and  delegated authority to  the Chair to  make decisions                                                               
on ongoing and pending legal  matters. Typically, matters come up                                                               
and filings need  to be made, she said. The  decision to delegate                                                               
authority  was not  made  to  initiate an  appeal  but rather  to                                                               
delegate the authority  to the Legislative Council  Chair to work                                                               
with the Legislative Affairs attorney on these ongoing matters.                                                                 
CHAIR REINBOLD  asked if  that was  a normal  process Legislative                                                               
Legal uses to  work with Legislative Council. She  was unsure why                                                               
the emergency Legislative Council meeting was called.                                                                           
MS. WALLACE  replied that the recent  Legislative Council meeting                                                               
was  called  due  to  urgent  deadlines set  for  the  appeal  of                                                               
governor's lawsuit.  She said it  is not unusual to  delegate the                                                               
authority to  work on litigation  with her office.  She explained                                                               
that   Legislative  Council   previously   decided  to   initiate                                                               
litigation  on  forward  funding   of  legislation  and  governor                                                               
appointments.  The  legislature did  not  have  the authority  to                                                               
[delegate these  matters] since this  is a new legislature  and a                                                               
new Legislative Council Chair, she said.                                                                                        
CHAIR REINBOLD  asked how frequently  this type of  delegation of                                                               
authority occurs.                                                                                                               
2:07:16 PM                                                                                                                    
MS.  WALLACE  responded  that  she   could  not  comment  on  the                                                               
relationship  between the  Chair  and Vice  Chair of  Legislative                                                               
Council but  in her  experience the  Chair has  consistently been                                                               
delegated the authority to make decisions on litigation.                                                                        
CHAIR REINBOLD offered  her view that this  seemed unusual. Since                                                               
she hasn't served  on Legislative Council for  several years, she                                                               
would like a  refresher on the powers the Chair  has with respect                                                               
to litigation.                                                                                                                  
MS.  WALLACE   asked  if  her   question  was  with   respect  to                                                               
Legislative Council's powers on litigation.                                                                                     
CHAIR REINBOLD  expressed her  interest in  the last  motion that                                                               
was made at the emergency Legislative Council meeting.                                                                          
MS. WALLACE suggested that perhaps  it would be better to discuss                                                               
this  privately or  during a  Legislative  Council meeting  since                                                               
these discussions could result in disclosing strategy.                                                                          
2:09:47 PM                                                                                                                    
SENATOR KIEHL agreed  it is never good when  the executive branch                                                               
and  legislature end  up in  court.  He said  the Superior  Court                                                               
ruling  seemed  to  imply  that the  legislature  not  voting  on                                                               
appointees means yes. He asked for clarification on the ruling.                                                                 
MS. WALLACE responded  that she did not have  the summary opinion                                                               
before  her  and did  not  want  to mischaracterize  the  ruling.                                                               
However,  Judge  Pallenberg's  decision upheld  the  language  in                                                               
House Bill  309 and AS  39.050.080(3) that said that  the failure                                                               
to vote  was tantamount  to declination as  provided by  law. The                                                               
other option  is if  the failure  to vote  was not  tantamount to                                                               
declination, it could have resulted  in what is sometime referred                                                               
to as  tacit confirmation, she  said. If the  legislature doesn't                                                               
specifically and affirmatively vote  to confirm someone, that the                                                               
appointments  just  tacitly  become confirmed  through  inaction.                                                               
There was  a pre-statehood  court decision  in the  Munson matter                                                               
that  ruled that  tacit confirmation  is not  something that  the                                                               
legislature  had  provided for.  Therefore,  it  wasn't a  viable                                                               
solution when the legislature had not acted, she said.                                                                          
SENATOR KIEHL said he would follow up with her later.                                                                           
2:13:52 PM                                                                                                                    
CHAIR REINBOLD  remarked that  she likes  checks and  balances on                                                               
the  branches  of  government.   She  said  she  appreciated  the                                                               
2:14:50 PM                                                                                                                    
At ease                                                                                                                         
                     SB 90-ELECTRONIC WILLS                                                                                 
2:16:01 PM                                                                                                                    
CHAIR  REINBOLD reconvened  the  meeting and  announced that  the                                                               
business before  the committee would  be SENATE BILL NO.  90, "An                                                               
Act relating to  wills and the probate of wills;  relating to the                                                               
making,  witnessing,  self-proving,  revocation, and  probate  of                                                               
wills  by electronic  means; relating  to the  choice of  law for                                                               
execution of  wills; relating to  the certification of  copies of                                                               
wills; relating  to the establishment  of the validity of  a will                                                               
before death;  and providing  for an  effective date."  [The bill                                                               
was last heard on March 3, 2021.]                                                                                               
2:16:13 PM                                                                                                                    
SENATOR MYERS recapped the reason  for introducing SB 90. He said                                                               
it became  apparent during the  pandemic that people  were afraid                                                               
of  public  contact.  Although people  could  write  their  wills                                                               
online, notarizing or witnessing them  must be done in person. SB
90 would allow people to  notarize and witness their wills online                                                               
via  Zoom or  some  other platform.  This  process would  require                                                               
verification  of  the person's  identity  to  execute their  will                                                               
2:17:24 PM                                                                                                                    
SENATOR HUGHES asked if he  had considered any recommendations by                                                               
the Uniform  Law Commission (ULC).  She surmised that  all states                                                               
must  wrestle  with  these issue.  She  acknowledged  that  ULC's                                                               
recommendations might  need to be customized  to address Alaska's                                                               
SENATOR  MYERS answered  that this  bill was  based on  ULC model                                                               
legislation for wills. He acknowledged  a dozen or so states have                                                               
passed similar legislation  and another 25 states  are working to                                                               
adopt changes.                                                                                                                  
2:18:25 PM                                                                                                                    
SENATOR  HUGHES  advised  members  and the  public  that  ULC  is                                                               
comprised  of  attorneys  from  each  state  that  specialize  in                                                               
specific areas of law. She offered  her view that ULC is always a                                                               
good resource.                                                                                                                  
2:19:27 PM                                                                                                                    
SENATOR  MYERS  moved  to  adopt Amendment  1,  [work  order  32-                                                               
LS0501\B.1], which read:                                                                                                        
                          AMENDMENT 1                                                                                       
 OFFERED IN THE SENATE                        BY SENATOR MYERS                                                                  
     Page 3, lines 4 - 5:                                                                                                       
          Delete "or readable as text"                                                                                      
          Insert ", which may be in electronic form"                                                                        
     Page 7, lines 5 - 6:                                                                                                       
          Delete "or in a record that is readable as text"                                                                  
          Insert ", which may be in electronic form"                                                                        
CHAIR REINBOLD objected for discussion purposes.                                                                                
2:19:33 PM                                                                                                                    
SENATOR  MYERS explained  Amendment  1 would  correct a  drafting                                                               
issue and also address an issue  Senator Kiehl raised at the last                                                               
bill  hearing.  Amendment 1  relates  to  the bill  section  that                                                               
addresses holographic  wills. In Alaska, technology  is often not                                                               
available  so  many  people handwrite  their  wills.  The  courts                                                               
currently recognize  those wills. Amendment 1  would allow people                                                               
to  use   electronically  witnessed  wills.  There   was  concern                                                               
expressed about  accepting wills  that were  computer typewritten                                                               
documents because  it was  not possible to  verify who  typed it.                                                               
However, handwritten  wills could  be written,  then photographed                                                               
via the person's  smart phone to help preserve the  record of the                                                               
will. This is  especially important since papers can  get lost or                                                               
easily be  degraded. Amendment 1  would clarify this  by removing                                                               
language that the  will was electronic "or readable  as text" and                                                               
replace it  with "which  may be in  electronic form."  This would                                                               
allow a handwritten will to be in electronic form, he said.                                                                     
2:21:14 PM                                                                                                                    
CHAIR  REINBOLD   noted  that  the  Legislative   Legal  Services                                                               
(Legislative Legal)  attorney was not online.  She suggested that                                                               
the legal drafter might need to participate at a later date.                                                                    
2:21:31 PM                                                                                                                    
SENATOR  HUGHES said  she shared  the  concern about  handwritten                                                               
wills.  She wanted  to  make sure  an image  or  photograph of  a                                                               
holographic will would be acceptable.  She expressed concern that                                                               
the  language, "which  may be  in electronic  form." might  still                                                               
allow a will to be an  electronic word document or PDF. She asked                                                               
why the language does not refer to an image in electronic form.                                                                 
2:22:54 PM                                                                                                                    
SENATOR MYERS  said the language  in [AS 13.12.502(b)] of  SB 90,                                                               
immediately preceding the language  in Amendment 1, requires that                                                               
the signature  and material  portions of the  record must  be "in                                                               
the testators handwriting"  or "readable as text."  The intent is                                                               
to preserve the  person's handwritten will in  electronic form so                                                               
that concern has been addressed.                                                                                                
SENATOR  HUGHES stated  she did  not realize  that "or"  had been                                                               
2:23:49 PM                                                                                                                    
SENATOR KIEHL expressed  concern that if handwriting  could be in                                                               
electronic form,  it could allow  someone to use a  cursive font.                                                               
The  technology  to  do  so  is  currently  available.  In  fact,                                                               
replicating  handwriting may  be  enhanced  by future  algorithms                                                               
such  that  a  person  could  write  a  letter  in  their  great-                                                               
grandfather's script. He asked if  anything would prevent someone                                                               
from typing in a font replicating a person's handwriting.                                                                       
SENATOR MYERS acknowledged  that it does not but if  so, it could                                                               
be challenged. He said a  font would reproduce things exactly but                                                               
a person's handwriting  is never exact. He offered  his view that                                                               
a   handwriting  expert   could  challenge   it.  After   briefly                                                               
consulting  with  staff,  Josiah  Nash, he  deferred  to  Abigail                                                               
O'Connor to respond.                                                                                                            
2:27:02 PM                                                                                                                    
ABIGAIL O'CONNOR, Attorney, O'Connor  Law Office, LLC, Anchorage,                                                               
Alaska,  said  she helped  draft  the  language  for SB  90.  She                                                               
provided  some background  information on  the holographic  wills                                                               
and what  was envisioned  with SB 90.  Currently, a  person could                                                               
write out  their will  and sign  it, which  would be  legal. This                                                               
bill  would  allow  someone  to  write their  will  on  a  tablet                                                               
computer using  a stylus. She  acknowledged that  Senator Kiehl's                                                               
concern that someone might to use  a cursive font is a valid one.                                                               
It  certainly  could happen  as  technology  improves, she  said.                                                               
However, Senator Myers  is also correct that  the authenticity of                                                               
the  will  may  arise  but  that issue  could  be  challenged  in                                                               
probate. Without witnesses present, it  is difficult to know with                                                               
any  certainty  who wrote  and  signed  a holographic  will.  For                                                               
example,  a person  may have  written  and signed  their will  at                                                               
gunpoint. Although this  change would allow one  more aspect that                                                               
could  be  challenged,  it  is  already  an  issue  that  can  be                                                               
challenged. However, Alaska statutes allow for it, she said.                                                                    
2:29:25 PM                                                                                                                    
SENATOR KIEHL  agreed that holographic wills  are challenging and                                                               
risky.  He offered  his  view  that the  core  of  bill is  good.                                                               
However,  it  may need  "future  proofing."  He  said he  is  not                                                               
comfortable with this amendment.                                                                                                
2:29:54 PM                                                                                                                    
SENATOR REINBOLD  said she was  unsure if she  supports Amendment                                                               
2:30:18 PM                                                                                                                    
MS. O'CONNOR,  after conferring with her  colleague, suggested it                                                               
might  be possible  to develop  a definition  for handwriting  or                                                               
other language  that would  still allow  holographic wills  to be                                                               
2:31:21 PM                                                                                                                    
SENATOR HUGHES suggested  adding a sunset provision  to the bill,                                                               
which would allow the legislature to revisit the matter.                                                                        
SENATOR MYERS stated  his preference would be  to adopt Amendment                                                               
1,  then  develop another  amendment  to  be  taken up  later  to                                                               
further address holographic wills in readable text.                                                                             
SENATOR KIEHL said  he would likely oppose  Amendment 1. However,                                                               
he would like to continue to work on the issue.                                                                                 
SENATOR  SHOWER expressed  concern about  artificial intelligence                                                               
since  mimicking  someone's  writing  can  already  be  done.  He                                                               
suggested tabling Amendment 1 or revising it.                                                                                   
2:33:32 PM                                                                                                                    
SENATOR HUGHES  argued that if artificial  intelligence can mimic                                                               
a holographic will, it could also be  used to create a copy of an                                                               
original paper will. She suggested the  goal of Amendment 1 is to                                                               
minimize  the chance  of forging  a will  written in  an MS  Word                                                               
document or  PDF. Currently, a  person can hand write  their will                                                               
or  a bad  actor can  produce one  with a  computer. Amendment  1                                                               
allows for  an image of  that document. The probate  process will                                                               
determine  its authenticity,  she said.  She offered  her support                                                               
for Amendment 1.                                                                                                                
2:34:23 PM                                                                                                                    
CHELSEA RIEKKOLA,  Attorney, Foley & Pearson,  Anchorage, Alaska,                                                               
pointed out she  has worked on legislation to  update wills based                                                               
on the Uniform  Law Commission model legislation.  This issue has                                                               
already been addressed by a  court in another state. However, she                                                               
does  not  have  the  cite  before  her.  She  related  the  case                                                               
pertained  to a  will  written and  signed using  a  stylus on  a                                                               
Samsung Galaxy  phone. The  court determined  that this  will was                                                               
valid. She  recognized that while  future proofing  is preferred,                                                               
she was unsure that every  facet could be anticipated. One reason                                                               
this   bill  is   being  brought   forth  is   to  increase   the                                                               
accessibility to  estate planning  in Alaska. This  is especially                                                               
important for people  in remote areas who may not  have access to                                                               
a lawyer, witnesses or a notary.                                                                                                
2:36:28 PM                                                                                                                    
SENATOR  REINBOLD  asked if  this  language  is essential  or  if                                                               
Amendment 1 could  be tabled. She suggested that  further work is                                                               
needed on Amendment 1.                                                                                                          
2:36:57 PM                                                                                                                    
MS.  RIEKKOLA expressed  her interest  in passing  the bill  with                                                               
language that recognizes a holographic  will. She deferred to Ms.                                                               
2:37:29 PM                                                                                                                    
MS.  O'CONNOR said  the language  in Amendment  1 was  their best                                                               
attempt at language  to recognize a will in  electronic form. She                                                               
suggested  that the  language in  [AS  13.12.502(b)(1)] is  broad                                                               
enough  to capture  this goal.  She offered  to further  consider                                                               
language or  develop a definition.  However, sometimes  an effort                                                               
to try to solve one  problem creates another. She appreciated the                                                               
concerns raised, yet these issues  already exist with holographic                                                               
wills. In her experience, holographic  wills are not that common.                                                               
Thus, she did not  view this as a huge problem.  Most of the time                                                               
people have  their wills witnessed,  she said. Amendment  1 would                                                               
allow for an image of a  handwritten will to suffice. She was not                                                               
certain if that means that someone  could write their will with a                                                               
stylus.  She was  unsure what  constitutes an  image and  if this                                                               
language  captures the  intent. However,  she stated  her support                                                               
for Amendment 1, as written.                                                                                                    
2:40:04 PM                                                                                                                    
SENATOR SHOWER pointed  out that Federal Express  [FedEx] and the                                                               
US Postal  Service (USPS) tracks and  authenticates its packages.                                                               
He asked whether multi-authentication could solve this problem.                                                                 
SENATOR  KIEHL  suggested  that   those  with  access  to  multi-                                                               
authentication  tracking will  likely have  access to  lawyers or                                                               
witnesses. Holographic  wills allow someone alone  in a trapper's                                                               
cabin who  wants to write  their will  to do so.  He acknowledged                                                               
that  this tool  serves a  valuable  purpose. At  the same  time,                                                               
holographic wills  pose risks,  he said.  He maintained  his view                                                               
that holographic  wills should be  limited to  actual handwriting                                                               
to limit the risk of fraud.                                                                                                     
SENATOR  HUGHES remarked  that while  the committee  has concerns                                                               
about  artificial intelligence,  more  and more  schools are  not                                                               
even teaching handwriting  so it is likely that  the future trend                                                               
will phase out written wills and phase in typewritten wills.                                                                    
2:42:20 PM                                                                                                                    
SENATOR MYERS argued that not  passing Amendment 1 will leave the                                                               
bill in worse  shape. He expressed appreciation  for the concerns                                                               
and issues  raised but  those issues could  be considered  as the                                                               
bill moves forward.                                                                                                             
2:43:19 PM                                                                                                                    
CHAIR REINBOLD removed her objection.                                                                                           
2:43:24 PM                                                                                                                    
SENATOR KIEHL objected.                                                                                                         
2:43:27 PM                                                                                                                    
A roll  call vote was  taken. Senators Shower, Hughes,  Myers and                                                               
Reinbold voted  in favor of  Amendment 1 and Senator  Kiehl voted                                                               
against it. Therefore, Amendment 1 passed by a 4:1 vote.                                                                        
CHAIR REINBOLD stated that Amendment 1 was adopted.                                                                             
2:44:17 PM                                                                                                                    
SENATOR  MYERS  moved  to  adopt Amendment  2,  [work  order  32-                                                               
LS0501\B.2], which read:                                                                                                        
                          AMENDMENT 2                                                                                       
      OFFERED IN THE SENATE                    BY SENATOR MYERS                                                                 
     Page 6, lines 25 - 26:                                                                                                     
         Delete "the copy may be an electronic record;"                                                                     
          Insert "the copy of the will may be a paper copy                                                                  
     of an electronic will certified under AS 13.12.518;"                                                                   
CHAIR REINBOLD objected for discussion purposes.                                                                                
SENATOR MYERS  said Amendment  2 was drafted  based on  ULC model                                                               
legislation. He explained that this  would allow someone to elect                                                               
to electronically  file a copy of  their will with the  court. He                                                               
related his understanding that the court  system is not set up to                                                               
accept electronic  filings at this  time. However,  parties could                                                               
file a  paper copy  of their  wills with  the court.  Amendment 2                                                               
would  allow people  to write  their  wills electronically,  then                                                               
file a paper copy of the will with the court.                                                                                   
2:45:40 PM                                                                                                                    
NANCY  MEADE, General  Counsel, Alaska  Court System,  Anchorage,                                                               
Alaska,  deferred  to  the  probate  experts  on  the  merits  of                                                               
Amendment  1.  With  respect  to  Amendment  2,  as  the  sponsor                                                               
mentioned, the court  system does not currently  have the ability                                                               
to accept or store electronic  wills. However, people can certify                                                               
a copy of their wills. The  court system could store that filing,                                                               
she said.                                                                                                                       
2:46:32 PM                                                                                                                    
CHAIR REINBOLD removed her objection.                                                                                           
There being no further objection, Amendment 2 was adopted.                                                                      
2:46:44 PM                                                                                                                    
SENATOR KIEHL withdrew Amendment 3, [work order 32-LS0501\B.5].                                                                 
2:47:23 PM                                                                                                                    
SENATOR KIEHL  made a  motion to adopt  Amendment 4,  [work order                                                               
32-LS\0501\B.6] which read:                                                                                                     
                          AMENDMENT 4                                                                                       
     OFFERED IN THE SENATE                     BY SENATOR KIEHL                                                                 
     Page 6, line 5, following "direction;":                                                                                    
          Insert "if the revocatory act is performed on an                                                                  
      electronic will, the evidence to show the testator's                                                                  
     intent and purpose must be clear and convincing;"                                                                      
CHAIR REINBOLD objected for discussion purposes.                                                                                
SENATOR  KIEHL explained  that Amendment  4  relates to  revoking                                                               
wills. The classic action of revoking  a will would be to tear it                                                               
up or burn  it. However, when the will is  in electronic form, it                                                               
is likely that  multiple copies exist. The question  arises as to                                                               
what it means if some copies  are deleted but others still exist.                                                               
Further,  questions arise  as to  how to  determine the  person's                                                               
intent. Amendment  4 would  place a  higher standard  on revoking                                                               
wills by requiring a clear  and convincing standard rather than a                                                               
preponderance of the evidence. For  example, someone could use an                                                               
online service that  requires the person to click  three times to                                                               
verify their desire to revoke the will.                                                                                         
2:49:28 PM                                                                                                                    
SENATOR MYERS offered his support for Amendment 4.                                                                              
SENATOR HUGHES asked if Ms.  O'Connor could indicate if the clear                                                               
and convincing standard would cause any problems.                                                                               
MS.  O'CONNOR  said she  was  not  able  to view  the  amendments                                                               
online. While  she has not  reviewed Amendment 4,  she understood                                                               
the language  would add  the clear  and convincing  standard. She                                                               
asked whether this was strictly  limited to when a person deletes                                                               
their will.                                                                                                                     
SENATOR  KIEHL answered  that Amendment  4 relates  to revocatory                                                               
acts  [in  Section  8]  on  page 6.  If  the  revocatory  act  is                                                               
performed  on  an  electronic  will, the  evidence  to  show  the                                                               
testator's intent must be clear and convincing.                                                                                 
2:51:24 PM                                                                                                                    
At ease                                                                                                                         
2:52:38 PM                                                                                                                    
CHAIR REINBOLD reconvened the meeting. She read Amendment 4:                                                                    
     Page 6, line 5, following "direction;":                                                                                    
          Insert "if the revocatory act is performed on an                                                                  
      electronic will, the evidence to show the testator's                                                                  
     intent and purpose must be clear and convincing;"                                                                      
2:53:18 PM                                                                                                                    
MS. O'CONNOR informed members that  she just received Amendment 4                                                               
by email. After conferring via  text messaging with Ms. Riekkola,                                                               
she  said their  immediate  reaction was  that  this may  already                                                               
apply in practice. She suggested  that the express requirement in                                                               
the  statute for  deleting  a will  should apply  to  all of  the                                                               
revocatory  acts for  paper and  electronic  wills. The  industry                                                               
would like to avoid creating  different standards for paper wills                                                               
and electronic wills.  She said she does not  object to requiring                                                               
clear and  convincing language be  applied for  burning, tearing,                                                               
canceling, obliterating, destroying or  deleting wills so long as                                                               
it applies to all wills.                                                                                                        
2:55:31 PM                                                                                                                    
SENATOR MYERS said that is a  good point. He said he may consider                                                               
offering a conceptual amendment.                                                                                                
2:55:55 PM                                                                                                                    
SENATOR   KIEHL   said   that  revocatory   acts   are   somewhat                                                               
problematic. The  best thing  a person could  do to  revoke their                                                               
will is to do so in writing and  then replace it with a new will.                                                               
Since revocatory  acts are allowable,  it could leave  the person                                                               
without a will. He did not  recall any ULC proceedings related to                                                               
this, but Ms. O'Connor's suggestion makes a lot of sense to him.                                                                
2:56:51 PM                                                                                                                    
SENATOR MYERS moved to adopt  a Conceptual Amendment to Amendment                                                               
4  to remove  "on an  electronic will"  to ensure  that it  would                                                               
apply to all wills.                                                                                                             
SENATOR KIEHL  agreed with the Conceptual  Amendment to Amendment                                                               
4  but suggested  it  should  apply to  "revocatory  acts on  all                                                               
SENATOR HUGHES objected for discussion purposes.                                                                                
SENATOR MYERS revised  the Conceptual Amendment 1  to Amendment 4                                                               
to read,  "If the  revocatory act is  performed, the  evidence to                                                               
show  the  testators  intent  and   purpose  must  be  clear  and                                                               
2:57:43 PM                                                                                                                    
MS. O'CONNOR suggested on page 6,  line 3, after the word intent,                                                               
to add "prove  by clear and convincing evidence." She  said it is                                                               
the intent that needs to be proved.                                                                                             
2:58:26 PM                                                                                                                    
SENATOR MYERS withdrew Conceptual Amendment 1 to Amendment 4.                                                                   
2:58:44 PM                                                                                                                    
SENATOR KIEHL withdrew Amendment 4.                                                                                             
2:59:19 PM                                                                                                                    
SENATOR  KIEHL moved  to adopt  Conceptual Amendment  5, that  in                                                               
Section 8,  the intent  for revocatory  acts must  be shown  by a                                                               
clear and  convincing standard. He deferred  to Legislative Legal                                                               
Services to make the necessary changes.                                                                                         
[The  committee  treated  it  as   though  someone  objected  for                                                               
discussion purposes.]                                                                                                           
CHAIR REINBOLD asked Ms. O'Connor whether it sounded reasonable.                                                                
2:59:54 PM                                                                                                                    
MS. O'CONNOR answered yes, it does.                                                                                             
There  being no  further  objection, Conceptual  Amendment 5  was                                                               
[SB 90 was held in committee.]                                                                                                  
3:01:34 PM                                                                                                                    
There being  no further  business to  come before  the committee,                                                               
Chair Reinbold adjourned the  Senate Judiciary Standing Committee                                                               
meeting at 3:01 p.m.                                                                                                            

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