Legislature(1993 - 1994)
04/14/1993 01:45 PM Senate JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 14, 1993
1:45 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator George Jacko
Senator Dave Donley
Senator Suzanne Little
MEMBERS ABSENT
NONE
COMMITTEE CALENDAR
SENATE BILL NO. 73
"An Act relating to the time for filing certain civil actions;
and providing for an effective date."
HOUSE BILL NO. 69
"An Act relating to registration of and information about sex
offenders and amending Alaska Rules of Criminal Procedure
11(c) and 32(b)."
SENATE BILL NO. 155
"An Act relating to landlords and tenants, to termination of
tenancies and recovery of rental premises, to tenant
responsibilities, to the civil remedies of forcible entry and
detainer and nuisance abatement, and to the duties of peace
officers to notify landlords of arrests involving certain
illegal activity on rental premises."
HOUSE JOINT RESOLUTION NO. 11
Proposing an amendment to the Constitution of the State of
Alaska relating to repeal of regulations by the legislature.
HOUSE BILL NO. 112
"An Act relating to limited partnerships; and providing for
an effective date."
SENATE BILL NO. 161
"An Act relating to interest rates and calculation of interest
under certain judgments and decrees and on refunds of certain
taxes, royalties, or net profit shares; and providing for an
effective date."
PREVIOUS SENATE COMMITTEE ACTION
SB 73 - See Labor & Commerce minutes dated 2/9/93. See
Judiciary minutes dated 3/31/93.
SB 69 - See Labor and Commerce minutes dated 2/2/93.
SB 155 - See State Affairs minutes dated 3/24/93. See
Judiciary minutes dated 4/2/93 and 4/8/93.
HJR 11 - NONE
HB 112 - NONE
SB 161 - See State Affairs minutes dated 4/2/93 and 4/7/93.
WITNESS REGISTER
Colin Maynard
Alaska Society of Professional Engineers
1400 W. Benson, Suite 500
Anchorage, Alaska 99517
POSITION STATEMENT: Supported SB 73.
Doug Green, Chairman
Legislative Liaison Committee
Alaska Professional Design Council
P.O. Box 10-3115
Anchorage, Alaska 99510-3115
POSITION STATEMENT: Supports SB 73.
Russell L Winner, Attorney
WINNER & ASSOCIATES
900 West Fifth Avenue
Anchorage, Alaska 89501
POSITION STATEMENT: Opposed SB 73.
Doug Wooliver, Represented Sponsor.
Representative Ramona Barnes
Slip Float 5, Harris Harbor
Juneau, Alaska 99801
POSITION STATEMENT: Supported HB 69.
Liz Dodd
Alaska Civil Liberties Union
100 Parks Street
Juneau, Alaska 99801
POSITION STATEMENT: Opposed HB 69.
Paul Nelson
Box 150
Haines, Alaska 99827
POSITION STATEMENT: Opposed HB 69.
Marcia McKenzie
Council on Domestic Violence & Sexual Assault
Department of Public Safety
Box 11120
Juneau, Alaska 99811
POSITION STATEMENT: Supported HB 69.
Arthur H. Snowden, Administrative Director
Judicial Branch
303 K Street
Anchorage, Alaska 99501-2084
POSITION STATEMENT: Opposed HB 69.
Margo Knuth, Asst. Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Opposed HB 69.
Tim Benintendi, Aide
Representative Carl Moses
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified on HB 112.
Joseph P. Geldhof, Asst. Attorney General
Civil Section, Department of Law
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified on SB 161.
Dan Beardsley
Central Region
Department of Transportation & Public Facilities
P.O. Box 196900
Anchorage, Alaska 99519-6900
POSITION STATEMENT: Testified on SB 161.
Jeffery C. Ottensen, Chief
Right-of-Way & Environment
Division of Engineering & Operations
Department of Transportation & Public Facilities
3132 Channel Drive
Juneau, Alaska 99801-7898
POSITION STATEMENT: Testified on SB 161.
Ann Williams
Municipality of Anchorage
P.O. Box 196650
Anchorage, Alaska 99519-6650
POSITION STATEMENT: Testified on SB 161.
ACTION NARRATIVE
TAPE 93-43, SIDE A
Number 001
Chairman Robin Taylor called the Judiciary Committee meeting
to order at 1:45 p.m.
SENATOR TAYLOR returned SB 73 (LIABILITY OF DESIGN/
CONSTRUCTION PROFESSIONALS) introduced by SENATOR KELLY, to
committee and directed the teleconference for the bill,
beginning with the Anchorage location to hear COLIN MAYNARD.
MR. MAYNARD, representing the Alaska Society of Professional
Engineers, testified in favor of the bill citing protection
from the present indefinite period of liability. He described
the extent of the suits that could be pursued during this
period of liability due to changes in design or neglect by the
owner of the building in question. MR. MAYNARD discussed why
liability should be discontinued at the end of ten years
unless there was proof of negligence by the design
professionals. He concluded his testimony by explaining why
he thought the Statute of Repose was fair to all parties
involved in the building profession.
Next, SENATOR TAYLOR invited DOUG GREEN to testify from
Anchorage.
Number 057
MR. GREEN, representing the Alaska Professional Design Council
and the American Institute of Architects, introduced himself
as an architect in support of SB 73. He reviewed testimony
from previous years on the Statute of Repose defending the
record of the design professionals in protecting the public
and utilizing the most current codes and standard of care.
MR. GREEN explained that having the Statute of Repose would
not lower their current standard of attention. He further
explained the process involved in construction and the
possible changes made to a project. He described how the
Statute of Repose would be of benefit to the State of Alaska
and would have no fiscal impact to the legislation.
Number 155
RUSS WINNER, an attorney from the Anchorage firm of WINNER &
ASSOCIATES, was invited to testify.
MR. WINNER, representing the Alaska Academy of Trial Lawyers,
testified in opposition to SB 73 for what he said were future
victims of buildings that might collapse. He predicted the
occurrence of calamities for these future victims, and he
described such occurrences as being unfair under the Statute
of Repose.
MR. WINNER labeled it "special interest litigation" for the
design professionals involved in construction projects and
questioned the need for special treatment for architects and
engineers. He suggested it could be compared it to giving
lawyers the same protection, which he said would also be
unfair to the victims.
MR. WINNER explained SB 73 was almost identical to a statute
that was previously struck down as unconstitutional by the
Alaska Supreme Court. He reviewed the constitutional analysis
by the supreme court as well as the policy considerations that
were present both then and now. He predicted the Alaska
Supreme Court would strike the present legislation as also
unconstitutional.
MR. WINNER said his view was shared by the attorney for the
Division of Legal Services in a letter to REPRESENTATIVE BRIAN
PORTER regarding SB 73. He reviewed the changes between the
six-year Statute of Repose of the previously unconstitutional
legislation to one of ten years in SB 73 which includes gross
negligence as a causative factor. MR. WINNER reiterated his
objections to the current legislation as being identical to
the previous statutes which he believed would be adjudged
unconstitutional by the Alaska Supreme Court.
Number 239
MR. WINNER explained why he considered it inappropriate the
legislature would consider a piece of legislation after
receiving similar advice from attorneys. He reviewed the
concerns noted by the Alaska Supreme Court Case in Turner
Construction Co., Inc. v. Scales, 752 P.2d 467 (Alaska 1988)
when it struck down the earlier bill. MR. WINNER quoted the
court findings that the Statute of Repose violated the state
constitution's equal protection clause. He said it deprives
innocent victims of a substantial right to recovery in court.
MR. WINNER quoted the Turner court as finding the purpose of
the six-year Statute of Repose was to "encourage construction
and avoid stale claims by shielding certain defendants from
potential future liability." MR. WINNER said he assumed that
was the same purpose for SB 73, and he explained the court's
determination this did not serve this purpose very well
because of the multiple involvement of participants in a
construction project - besides design professionals. In
addition, he explained how this affirmed the ruling of several
superior court judges, who had considered the statute in
earlier cases.
Number 273
MR. WINNER continued to review the infirmities he saw in SB
73 such as the allocation of fault among parties to a piece
of litigation after voters approved an initiative abolishing
joint and several liability. He said the Statute of Repose
would shift liability to owners, lessees, and persons selling
materials, and he claimed for that reason, SB 73 "stinks."
SENATOR TAYLOR explained the committee was nearly out of time
on the teleconference network, and he asked MR. WINNER to
comment on a couple of proposed amendments to SB 73.
MR. WINNER had suggested in a letter to SENATOR TAYLOR in a
letter, in which he explained to the committee might, or might
not, enable SB 73 to pass the courts as statutes. He said it
would make the legislation less onerous to innocent victims.
MR. WINNER also described a judicial committee, headed by
JUDGE KARL JOHNSTON, Presiding Judge for the Third District,
designated to look at major changes in the court system. MR.
WINNER suggested the outcome of the committee would be to
dramatically shorten the discovery process and to "smoke out
meritless lawsuits early in the process." He also proposed
it would reduce the need for legislation such as SB 73.
Number 323
SENATOR TAYLOR requested MR. WINNER to address page 2, line
24, *Sec. 2. ..., ACTIONS TO BE BROUGHT IN SIX YEARS, and
asked why MR. WINNER did not propose amendments for that
section.
MR. WINNER thought the meat of the bill was in * Sec. 3, and
SENATOR TAYLOR agreed with his explanation.
SENATOR TAYLOR checked the teleconference network for others
wishing to testify on SB 73. Hearing none, the teleconference
ended.
SENATOR LITTLE proposed splitting the recommendations from MR.
WINNER into two amendments and moved Amendment #1.
Page 3, line 19, after ";":
Delete "or"
Page 3, line 21, after "contract":
Insert "; or
(4) if the defect was not discovered or could
not reasonably have been discovered by
the person bringing an action for personal injury or propert ert
the decedent in a wrongful death action,
within the period of time set out under
(a) of this section."
SENATOR HALFORD objected to the amendment. SENATOR TAYLOR
asked SENATOR LITTLE to explain the amendment.
Number 377
SENATOR LITTLE explained the merits of the amendment and urged
support.
SENATOR TAYLOR defended the amendment, and it passed on a 3 -
1 vote.
SENATOR LITTLE proposed Amendment #2 based on the letter from
MR. WINNER as follows:
Page 3, line 26,
Insert a new subsection to Section 3:
"(e) If any person or entity is found immune
from suit under this section, the finder
of fact in any section shall not consider
that person's or entity's actions or
failure to act for purposes of allocating
fault and damages pursuant to
AS 09.17.080."
SENATOR HALFORD objected to the amendment. SENATOR TAYLOR
again asked SENATOR LITTLE to explain the amendment.
SENATOR LITTLE thought it would encourage support for the
bill.
SENATOR JACKO asked for SENATOR LITTLE'S understanding of the
amendment.
SENATOR LITTLE deferred to SENATOR TAYLOR who said it was less
onerous to the sponsors than the first amendment which he
thought might have some open ended aspects. He explained
Amendment #2 answers the questions he had previously raised
about protection for those involved in the design and
construction of a building when the fault lies elsewhere in
the construction of the building - such as a faulty hidden
beam.
SENATOR LITTLE said the amendment allowed the liability to be
apportioned to those at fault.
Number 425
SENATOR TAYLOR and SENATOR HALFORD did not agree, saying it
would transfer the fault. SENATOR LITTLE thought that was a
correct assessment. SENATOR TAYLOR described a circumstance
under which the amendment would apply, and SENATOR HALFORD
said it might be transferred to someone not at fault. There
ensued a general discussion among the committee members as to
fault in the construction.
SENATOR LITTLE offered to withdraw the amendment, but SENATOR
TAYLOR urged the amendment be offered to committee.
Number 483
SENATOR TAYLOR offered Amendment #2 which carried.
The discussion continued with SENATOR JACKO asking if it would
apply to bridges. SENATOR TAYLOR said it would.
SENATOR HALFORD moved to pass CS FOR SENATE BILL NO. 73(JUD)
from committee with individual recommendations. SENATOR
LITTLE objected, and it passed on a 3 - 1 vote.
SENATOR TAYLOR introduced CS FOR HOUSE BILL NO. 69 (FIN) (SEX
OFFENDER REGISTRATION) sponsored by REPRESENTATIVE RAMONA
BARNES and represented to the committee by DOUG WOOLIVER,
Staff Attorney.
Number 505
SENATOR TAYLOR invited MR. WOOLIVER to present the bill for
HOUSE SPEAKER RAMONA BARNES.
MR. WOOLIVER reviewed the sectional analysis for CSHB 69
(FIN): "An Act relating to registration of and information
about sex offenders and amending Alaska Rules of Criminal
Procedure 11(c) and 32(b); and providing for an effective
date."
MR. WOOLIVER explained the bill covered crimes of sexual
assault in the first, second, and third degree; sexual abuse
of a minor in the first, second, and third degree; promoting
prostitution in the first degree; and incest and unlawful
exploitation of a minor. He also explained the bill covered
crimes not only committed in Alaska but those in other
jurisdictions when those persons moved to Alaska.
MR. WOOLIVER said a sex offender in Alaska would have seven
days in which to register, and those who come to Alaska would
have fourteen days in which to register. He explained the
provisions of the bill would be retroactive to January 1,
1984. Anyone convicted of two or more sex offenses would be
required to register for life, and anyone with one sex offense
would be required to register for fifteen years. These
periods would commence after their unconditional discharge.
In Subsection (b)(1), MR. WOOLIVER listed the information to
be contained in the registration, including name, address,
place of employment, date of birth, each conviction for a sex
offense for which the duty to register has not terminated,
date, place and court of sex offense conviction, all aliases
used and driver's license number. All of this information
would be available to the public except for the offenders'
finger prints, drivers license, and aliases.
MR. WOOLIVER explained this bill was needed since Alaska leads
the nation in child sexual abuse and is second in the nation
in sexual assaults, and he cited studies from California and
other places which accused sex offenders of having the highest
recidivism rate.
MR. WOOLIVER quoted devastating statistics from various
sources on the differences in sex offenders, the large number
of victims, as well as investigations which concluded that
rapists and child sexual abusers were more likely to be
arrested for new sex crimes if they completed psychological
treatment. MR. WOOLIVER claimed therapy was deemed to be
ineffective, and he quoted a study from Canada that determined
that sex offenders were worse after treatment. He noted the
high number of children abused by sex offenders who grew up
to be sex offenders themselves.
Number 545
MR. WOOLIVER continued his presentation with an assessment
of the pervasive aspects of the present unregistered sex
offender problem in Alaska. He said there was a lack of
"handy" information on child sex offenders, and the offenders
were found to be in areas where they had ready access to
children.
MR. WOOLIVER concluded his review of HB 69 by specifying the
uses for the registration of sex offenders, and he referred
to a California study which showed overwhelming support from
law enforcement agencies as a beneficial system for aiding
their jobs. He said there were currently eighteen states with
sex offender registration and a couple more have registration
for drug offenses as well. He reported HB 69 was similar to
registration legislation in the other states.
Number 577
SENATOR LITTLE questioned the constitutionally of the bill
since it would increase the sentence of those persons
convicted of a sex offense.
MR. WOOLIVER said this was a fair assessment and had been
brought up in other courts, but it has been found the law was
not punitive, but was regulatory - in most of the other cases.
He said this did not violate the ex facto provision of laws,
and the courts in Alaska ......
TAPE 93-43, SIDE B
Number 001
.... have addressed similar cases in the past as having a
valid regulatory purpose for the law.
SENATOR LITTLE suggested there might be punitive effects. MR.
WOOLIVER said she was correct, and he explained the actions
of the court in this respect. He quoted a constitutional case
settled by the supreme court in 1990 which has limitations to
the impact on the convicted person.
In a series of questions, SENATOR JACKO asked about repeat
offenders? MR. WOOLIVER answered there was a difference in
registration requirements. SENATOR JACKO asked if the public
disclosure provisions of the legislation were in excess of
those in other states. MR WOOLIVER'S answer included a review
of disclosure provisions from other states which have
withstood challenge. The right to privacy was also discussed.
SENATOR TAYLOR asked MR. WOOLIVER about restrictions in the
dissemination of registration information. SENATOR TAYLOR
followed up with a series of questions to determine the limits
on the dissemination in other states. He also asked for the
specific proposed regulation in the bill to determine who has
access to the information.
MR. WOOLIVER directed the committee to page 4, line 7, (b) to
explain the extent of disclosure in HB 69.
SENATOR TAYLOR thanked MR. WOOLIVER and invited LIZ DODD,
representing the Alaska Chapter of the Civil Liberties Union,
to testify.
MS. DODD described the dissemination of information in the
State of Washington from the registry to police offices, who
then decide whether or not to furnish the information. She
also explained the process of having a hearing to remove the
offender's name from the registry if that person can prove
they have been rehabilitated.
Number 071
MS. DODD also described the procedures for access to the
registries in other states, but she explained, under HB 69,
any business person could access the registry to find out the
information. MS. DODD thought this was a problem and would
not protect any children.
In her prepared statement, MS. DODD said the ACLU supported
the intended purpose of protecting the public from the chronic
sex offenders, but she thought the bill conflicted with the
constitution. She listed the concerns of the ACLU beginning
with "drowning the privacy rights of persons who have served
their prescribed sentence for the crime." She objected to the
wide-open public disclosure provision as being excessive
retribution rather than public protection. MS. DODD thought
this would be struck down by the courts and described it in
terms of ex facto restrictions.
MS. DODD further used the constitution to protest lumping all
sex offenders together for purposes of registration and for
assuming that all sex offenders are chronic and predatory.
She said this false assumption leads to the conclusion that
no offender should be exempted from registration, even those
considered treatable.
MS. DODD said there would be no incentive for offenders to
seek treatment, since they would be considered as an
untreatable offender despite any steps they take to correct
their behavior. She described how this might lead to an
increase in offenses, especially among the borderline
offenders. She contrasted this to the State of Washington
where the offender can petition the court to waive
registration requirements. With this legislation, she said
the first time offender would be treated as a repeat offender
regardless of individual circumstances.
Number 108
MS. DODD explained the difference in sex offenses in Alaska
as being alcohol related, where rehabilitation can diminish
the problem. She further explained this wouldn't be taken
into consideration in the legislation regardless of treatment
or circumstances. She claimed the registration would
disproportionally impact rural Alaskans most affected by
alcoholism. MS. DODD illustrated why she thought this would
be a grievous, race-biased error, and she accused HB 69 of
taking the "drift-net" approach.
MS. DODD concluded with remarks on cruel and unusual
punishment, where perpetrators could be sentenced to extended
periods, or a life time, of social ostracism and on-going
depravation of their basic rights as protected by the U. S.
Constitution. She described incidents of public ridicule and
vigilantism used in other states.
Number 133
MS. DODD reviewed the ACLU'S position on the provisions in the
legislation, HB 69, as being in conflict with the rights
guaranteed by the U. S. Constitution and the Alaska State
Constitution. She said the legislation was comparable to the
days of the stock and pillory in the public square - and would
do little to stop sex offenses. She expressed concern that
it would increase sex offenses and limit the treatment of
offenders.
MS. DODD asked the committee to hold the bill for further
evaluation of statistics in relation to similar legislation
passed in other states.
SENATOR TAYLOR called on PAUL NELSON from Haines.
MR. NELSON began his testimony by questioning MR. WOOLIVER on
his statistic that Alaska had six times the national rate for
sex offenses and asked if that was accusations or convictions.
MR. WOOLIVER thought they were convictions, but he wasn't
completely sure. SENATOR TAYLOR said he would find out the
correct statistics and report back to the committee.
MR. NELSON quoted from the Constitution of the United States,
Section 9, that the retroactivity clause was in violation of
the constitution. He thought registration of sex offenders
might be a good idea but suggested a preference for the parole
and probation system. MR. NELSON said the State of Alaska did
not need more laws in violation of the constitution and asked
that the bill not be passed from committee.
SENATOR DONLEY asked how it violated the constitution?
MR. NELSON quoted the constitution as saying that no law may
be passed which increases the punishment for a criminal who
has already been sentenced. He said HB 69 would require
people previously convicted to increase their sentence by
registering.
Number 175
SENATOR DONLEY said it was within the police power of the
state to provide public protection, and he claimed this was
not a punishment for sex offenders. It was meant for public
protection purposes. MR. NELSON disagreed and reiterated his
arguments.
SENATOR TAYLOR suggested that MR. NELSON'S comments should be
directed to MS. DODD.
SENATOR DONLEY asked MR. NELSON for some case law on the
subject, and MR. NELSON again referred to the constitution.
MS. DODD gave an explanation from the documents she has read
and concluded it was a process of public protection being
weighed against the punitive nature arising from retroactive
restrictions. SENATOR TAYLOR asked MS. DODD for a written
report on her information for the committee.
Number 209
SENATOR TAYLOR next invited MARCIA MCKENZIE, Program Director
for the Council on Domestic Violence & Sexual Assault for the
Department of Public Safety, to testify.
MS. MCKENZIE presented testimony from the council in support
of HB 69, because the council feels it would deter, if not
prevent, future abuses of women and children. She quoted
statistics from 1991 that the rate of sexual abuse in Alaska
was more than double the nation average. She said in 1992 the
rate of forcible rape rose 28% from the previous year.
MS. MCKENZIE explained that many sex offenders were released
from prison without having completed sex offender treatment,
which makes for a high likelihood of recidivism. In addition
to the victimization, the cost of the recidivism is high. She
thought anything that could deter this would be beneficial.
MS. MCKENZIE asked some questions about the registration such
as who would be checking on the offender. She explained it
would be helpful to the shelter programs to do background
checks on potential employees. For this reason, she said the
council was supportive of the registration concept.
SENATOR LITTLE offered a conceptual amendment to allow the
information only released to the law enforcement entities,
with such information released to the general public at the
discretion of these entities.
SENATOR TAYLOR asked the committee staff to draw up a draft
of SENATOR LITTLE'S conceptual amendment for consideration by
the committee.
SENATOR LITTLE offered an additional conceptual amendment,
similar to a provision in the Washington State law, to offer
the offender the right to petition the court to waive the
registration requirement.
SENATOR TAYLOR asked ARTHUR SNOWDEN, Administrative Director
for the Judicial Branch, if he wanted to testify.
MR. SNOWDEN, in reference to the first conceptual amendment
by SENATOR LITTLE, said the didn't want the court to begin
sealing public documents.
Number 268
Next to speak was MARGO KNUTH, Asst. Attorney General,
Criminal Division, for the Department of Law, who explained
that the first conceptual amendment by SENATOR LITTLE might
cause some tort problems for the state. She said it would put
the law enforcement agencies in the position of deciding the
guidelines used to make the decision as to whether disclosure
is appropriate.
SENATOR JACKO asked for additional testimony from other states
in which registration of sex offenders was done.
SENATOR TAYLOR reported from MR. WOOLIVER that other states
had similar laws using a screening device. He asked the staff
aide to check with MS. KNUTH in writing the amendments.
MR. WOOLIVER said the waiver provision was discussed in House
Committees, and there were objections from those who work with
victims of sexual assault. He said those in other states who
could afford the lawyers to get the waiver, were sometimes the
worst offenders. He said there had been a concern there would
be a disproportionate impact on the native population.
SENATOR JACKO asked MR. WOOLIVER if the registration would
impact the large segment of the native population that commit
suicide.
MR. WOOLIVER didn't know of any studies, but did know there
was a high rate of suicide among the victims of sexual abuse.
He quoted testimony from other committees that there wasn't
a higher percentage of sex offenders, but he offered to do
some research.
SENATOR JACKO asked whether there could be the option of
electrocution rather than being registered as an offender.
SENATOR TAYLOR said there being no more questions, testimony
on HB 69 would be tabled for another meeting.
Number 367
SENATOR TAYLOR returned CS FOR SENATE BILL NO. 155(JUD) (USE
OF RENTED PROPERTY/LAW VIOLATIONS) to the committee. SENATOR
HALFORD moved to pass the bill from committee with individual
recommendations. The bill passed from committee on a 3-2
vote.
SENATOR TAYLOR returned HOUSE JOINT RESOLUTION NO. 11(FLD S)
(REPEAL OF REGULATIONS BY THE LEGISLATURE) to the committee,
and there being no opposition, SENATOR HALFORD moved to pass
HJR 11 from committee with individual recommendations.
Without objections, so ordered.
SENATOR TAYLOR introduced HOUSE BILL NO. 112 (UNIFORM LIMITED
PARTNERSHIP ACT UPDATE) introduced by REPRESENTATIVE CARL
MOSES. TIM BENINTENDI, aide to REPRESENTATIVE CARL MOSES, was
invited to testify.
Number 381
MR. BENINTENDI explained the legislation would compete the
upgrade of Alaska's Uniform Limited Partnership Act, and he
reviewed the uniform law as making it legally compatible among
states. He said it would bring Alaska into conformity with
thirty three other states and make the state more attractive
to investors and lenders.
MR. BENINTENDI also said it had the support of the Alaska
Uniform Law Commission, and he reviewed previous upgrading on
the Limited Partnership Act, based on the recommended language
from the National Conference of Commissioners on Uniform State
Law with the exception of the certificate format. He reviewed
the actions of the sponsor on the short form v. the long form
certificate and referred the members of the committee to the
information in the bill packet from COMMISSIONER DEBORAH BEHR
and several legal firms, all indicating preference for the
notice form of certification.
MR. BENINTENDI described Section 1 as putting the notice form
into the statute - replacing the long form and allowing for
the reduction of cumbersome filing requirements. He explained
the long form requirement process in Section 20 to be made
available. The remaining sections, MR. BENINTENDI explained,
provided compatible amendments.
MR. BENINTENDI explained the effective date was to coincide
with the effective date of SB 193 to allow for the body of
amendments to become law on July 1, 1993. He said there were
two fiscal notes and no opposition.
SENATOR LITTLE asked for additional explanation on the
legislation, and MR. BENINTENDI explained it would upgrade the
laws from 1916. He further explained how the new legislation
would simplify the business of partnerships, especially where
many partnerships now number in the thousands.
MR. BENINTENDI explained how HB 112 would greatly assist the
Department of Commerce and Economic Development gather,
assimilate, and keep relevant partnership information current.
SENATOR TAYLOR said he would hold the bill over for a future
meeting.
SENATOR TAYLOR introduced CS FOR SENATE BILL NO. 161(STA)
(INTEREST RATES: JUDGMENTS/TAXES/ROYALTIES) sponsored by the
Senate Rules Committee by request of the Governor. SENATOR
TAYLOR invited JOE GELDHOF, from the Attorney General's Office
to testify on SB 161.
Number 435
MR. GELDHOF began by suggesting that questions relating to the
revenue aspects of the bill, Sections 4 and 5, could be
addressed to the Revenue Department, and he offered to get
those persons for testimony.
MR. GELDHOF referred to Section 1 which is the interest on
judgment and prejudgment interest, and noted that the
Administration, the Attorney General, and the Department of
Transportation and Public Facilities strongly support a move
into the market rate for setting interest, both for judgement
or prejudgment interest.
MR. GELDHOF offered some amendment language for page 2, which
would alter the language in the State Affairs version to
return the bill to a tort reform compromise. He explained,
in personal injury cases, a person who prevails, might be
entitled to prejudgment interest, but he proposed to change
in other cases, not set by contract, that prejudgment interest
would only be paid from the date of the issuance of the
summons. He offered to answer questions about the proposed
amendment for Section 1.
SENATOR DONLEY indicated he didn't like the bill, although
would support Section 2, but not the rest of the bill.
Number 518
SENATOR TAYLOR clarified the language MR. GELDHOF was
proposing to amend in Section 1 dealing with when prejudgment
interest would accrue: from the date of entry of the judgement
or decree, from the date of injury or harm, when the initial
summons was issued, or when the initial counter claim or
cross-claim was filed - whichever was earliest.
MR. GELDHOF agreed, and SENATOR TAYLOR further explained it
would make a slight difference in letters-of-demand to be sent
or notification to be given to the other side.
MR. GELDHOF said that was his understanding of the status quo
in personal injury cases which had been changed in State
Affairs, and he explained his preference for the original
language. He wanted to force the demand as well as the
settlement - which is the status quo. He said the amendment
would change a contract provision eliminating the prejudgment
interest, but would propose a "put up or be quiet" approach,
for those who might wait to sue a day before the statute of
limitations before asking for prejudgment interest. This
would be for personal injury cases only.
MR. GELDHOF explained for all other cases, the bill proposed
prejudgment interest which would accrue from the date of
summons in non-personal injury cases.
SENATOR DONLEY argued this didn't make sense and would defeat
the purpose. He said it would encourage the filing of a
lawsuit instead of mediation.
Number 544
MR. GELDHOF suggested the committee might want to make the
same provisions for personal injury as a demand, but he
described the breach of time before a lawsuit is filed. He
also described the involved agencies as not being wild about
prejudgment interest for a period of time before a suit is
filed.
SENATOR DONLEY chided the Department of Law as defending the
agencies while the "poor little guy" suffers at the hands of
the department for wrongful withholding of payment. He said
the legislature was there to protect those people against the
thinking contemplated in the bill.
MR. GELDHOF thought SENATOR DONLEY had some valid
considerations, but he claimed the legislation provided for
the period not specified by contract what and how prejudgment
would be paid. He reiterated the request of the legislation
for a market interest rate principal, and he defended the
amendment to reverse the changes by the State Affairs
Committee.
SENATOR TAYLOR thanked MR. GELDHOF for his testimony.
TAPE 93-44, SIDE A
Number 001
SENATOR DONLEY thought there was a significant number of
people who would be impacted by the legislation and could have
a reverse effect by going to a market rate. He thought this
solution should be reserved for a decision by the legislature
rather than the Commissioner of Revenue.
SENATOR DONLEY discussed with SENATOR TAYLOR about a possible
constitutional separation of powers question, and he thought
the present low market rate would not be an incentive for
settlement. SENATOR DONLEY reiterated his concerns for the
legislation with the exception of Section 2, which he thought
made sense for local governments, and he gave a possible
illustration.
SENATOR TAYLOR agreed SENATOR DONLEY had given a correct
illustration, but he thought there was a problem that needed
to be addressed, dealing with the fluctuation of interest
rates. There was a general discussion on the diversity of
interest rates.
SENATOR TAYLOR invited DAN BEARDSLEY, representing the
Department of Transportation to testify.
MR. BEARDSLEY said he echoed many of the concerns that have
been expressed, and he agreed there presently was a period of
no incentive to reach a settlement with some of the eminent
domain cases. He thought there was less a timing problem, but
more of an incentive to settle or to resolve the matter. His
department favors the market rate as an incentive not to drag
out a case.
Number 109
In reference to page 3, Section 5, SENATOR TAYLOR agreed with
the way in which it was expressed by SENATOR DONLEY where the
determination is left to the Commissioner of Revenue to decide
the market rate.
JEFFERY OTTENSEN, Chief of Right-of-Way for the Department of
Transportation, asked to expand on the previous testimony, and
SENATOR TAYLOR invited him to do so.
MR. OTTENSEN referred to line 13 on page 1, where the interest
rate appears to be set no later that December 15 and explained
it was not an opinion of the Commissioner of Revenue, but is
information based on the average accepted auction price for
auctions of 52-week United States' Treasury bills (T-bills).
There was a general discussion on this manner of setting the
rate.
Number 141
ANN WILLIAMS, representing the Municipality of Anchorage,
asked to speak to the committee. She said SENATOR DONLEY had
laid out quite fairly the position of the Municipality of
Anchorage. She, too, wanted Section 2 to remain in the bill
and thanked SENATOR DONLEY for expressing the concerns of the
Municipality of Anchorage.
SENATOR JACKO moved to pass CS FOR SENATE BILL NO. 161(STA)
(INTEREST RATES: JUDGMENTS/TAXES/ROYALTIES) from committee
with individual recommendations. SENATOR DONLEY objected.
SENATOR DONLEY said he would have no problem with moving
Section 2, but he thought there should be more public input
on the remainder of the bill. He reviewed areas of concern
in the legislation and suggested the legislation be revised
over the interim to give a more comprehensive assessment of
the goals for the legislation.
SENATOR DONLEY suggested removing Section 2 and sending it on
as a separate bill.
Before a vote was completed, SENATOR JACKO withdrew his motion
to move SB 161.
SENATOR TAYLOR thought Section 1 was good, also, and suggested
that those members wishing to make changes, to bring some
prepared amendments next Monday. There was agreement to this.
There being no further business to come before the committee,
the meeting was adjourned at 3:31 p.m.
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