Legislature(1993 - 1994)
04/30/1994 11:45 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 30, 1994
11:45 a.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator George Jacko
Senator Suzanne Little
MEMBERS ABSENT
Senator Dave Donley
COMMITTEE CALENDAR
CONFIRMATION HEARINGS - Robert E. Congdon, Violent Crimes
Compensation Board
- Dr. Laurie E. Dahms, Violent Crimes
Compensation Board
SENATE BILL NO. 362
"An Act relating to insurance, to the licensing, accreditation,
examination, regulation, and solvency of persons engaged in the
insurance business, including insurers, nonadmitted insurers,
purchasing groups, risk retention groups, and United States
branches of alien insurers; relating to the management of and the
filing of reports by persons licensed or otherwise doing business
under the insurance code; amending Alaska Rule of Civil Procedure
45; and providing for an effective date."
CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 420(STA)(efd am)
"An Act relating to limited liability companies; and providing for
an effective date."
HOUSE BILL NO. 445 am
"An Act relating to administrative or court revocation of a
driver's license resulting from operation of a motor vehicle,
commercial motor vehicle, or aircraft; relating to chemical testing
of a person's breath, urine, or blood if the person is involved in
a motor vehicle accident that causes death or serious physical
injury; relating to definitions applicable to commercial motor
vehicle laws; relating to chemical testing of a person's breath,
urine, or blood without the person's consent; and relating to the
use in a civil or criminal action of the refusal of a person to
submit to a chemical test."
CS FOR HOUSE JOINT RESOLUTION NO. 43(FIN)
Proposing an amendment to the Constitution of the State of Alaska
relating to the rights of crime victims.
CS FOR HOUSE BILL NO. 362(HES) am
"An Act relating to the statute of limitations for actions brought
upon a child support judgment; and establishing the crime of aiding
the nonpayment of child support."
CS FOR HOUSE BILL NO. 367(JUD) am
"An Act relating to limitations on outdoor advertising signs,
displays, and devices and penalties for violations related to
outdoor advertising."
CS FOR HOUSE BILL NO. 214(JUD)
"An Act allowing the parent or legal guardian of a minor to
disclose information about the minor to certain state officials and
state employees; prohibiting further disclosure of the information
to unauthorized persons; amending Alaska Child in Need of Aid Rule
22; and providing for an effective date."
CS FOR HOUSE BILL NO. 277(JUD)
"An Act relating to public employers defending and indemnifying
public employees and former public employees with respect to claims
arising out of conduct that is within the scope of employment."
CS FOR HOUSE BILL NO. 334(FIN) am
"An Act relating to criminal sentencing; relating to the
availability for good time credit for offenders convicted of
certain first degree murders; relating to definite 30- to 99-year
terms of imprisonment for offenders convicted of an unclassified or
class A felony that is a homicide, assault, kidnapping, sexual
offense, or robbery and who have at least two prior most serious
felony convictions; relating to parole, good time credit, pardon,
commutation of sentence, modification or reduction of sentence,
reprieve, furlough, and service of sentence at a correctional
restitution center for offenders with at least three most serious
felony convictions; defining `most serious felony' as an
unclassified or class A felony offense that is a homicide, assault,
kidnapping, sexual offense, or robbery or an attempt or conspiracy
to commit, or criminal solicitation of, an unclassified or class A
felony that is a homicide, assault, kidnapping, sexual offense, or
robbery; and amending Alaska Rule of Criminal Procedure 35."
HOUSE BILL NO. 316
"An Act adopting the Uniform Statutory Rule Against Perpetuities;
and providing for an effective date."
PREVIOUS SENATE COMMITTEE ACTION
SB 362 - See Labor & Commerce minutes dated 3/29/94 and 3/31/94.
See Judiciary minutes dated 4/11/94.
HB 420 - No previous action to record.
HB 445 - See Judiciary minutes dated 3/28/94.
HJR 43 - See Judiciary minutes dated 11/16/93 and State Affairs
minutes dated 3/9/94, 3/21/94, 3/23/94, and 3/28/94.
Also see Judiciary minutes dated 4/26/94.
HB 362 - See Judiciary minutes dated 4/25/94.
HB 367 - See Judiciary minutes dated 4/25/94.
HB 214 - See Health, Education & Social Services minutes dated
1/19/94.
HB 277 - See State Affairs minutes dated 4/13/94. See Labor &
Commerce minutes dated 4/26/94 and 4/28/94.
HB 334 - No previous action to record.
HB 316 - No previous action to record.
WITNESS REGISTER
Robert E. Congdon
7300 South Park Drive
Anchorage, AK 99516
Dr. Laurie E. Dahms
P.O. Box 876029
Wasilla, AK 99687
Bob Manley
324 East Cook
Anchorage, AK 99501
POSITION STATEMENT: Supports HB 420
Representative Brian Porter
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Prime Sponsor of HJR 43 & HB 277
Margo Knuth, Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Testified in support of HJR 43
Jayne Andreen, Executive Director
Council on Domestic Violence & Sexual Assault
P.O. Box 111200
Juneau, AK 99811-1200
POSITION STATEMENT: Testified in support of HJR 43
Phil Petri
Child Support Enforcement Division
Department of Revenue
550 W. 7th, Suite 312
Anchorage, AK 99501-3556
POSITION STATEMENT: Testified in support of HB 362
David Kamrath, Staff to Representative Harley Olberg
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Offered information on HB 367
Eleanor Roser, Staff to Representative Ramona Barnes
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Offered information on HB 214
Jeff Bush
175 S. Franklin St., Suite 318
Juneau, AK 99801
POSITION STATEMENT: Testified in support of HB 277
Representative Con Bunde
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Prime Sponsor of HB 334
Tim Benintendi, Staff to Representative Carl Moses
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Offered information on HB 316
Art Peterson
350 N. Franklin St.
Juneau, AK 99801
POSITION STATEMENT: Supports HB 316
ACTION NARRATIVE
TAPE 94-44, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 11:45 a.m.
The first order of business to come before the committee was a
confirmation hearing on Governor appointees to the Violent Crimes
Compensation Board, Robert E. Congdon and Dr. Laurie E. Dahms.
ROBERT CONGDON, addressing the committee from Anchorage via the
teleconference network, stated he has served a term on the board
and this would be a reappointment. He said it is a necessary job
trying to do something for victims, it is a lot of work, but he
enjoys doing it. He expressed his willingness to serve again as a
member on the Violent Crimes Compensation Board.
Number 029
There being no questions from committee members, SENATOR TAYLOR
stated a letter would be sent to Senate President Halford stating
that the committee has held a confirmation hearing on Mr. Congdon's
appointment to the Violent Crimes Compensation Board and that there
were no stated objections to that appointment.
DR. LAURIE DAHMS, testifying from Anchorage, stated she started
serving on the Violent Crimes Compensation Board in September 1993,
and she has found it an interesting board to work on. Her
background as a family practice physician gives her a fairly broad
based medical background to sort through the variety of different
claims that come in to the board, and, with that broad medical
background, she has been able to give that technical assistance to
the board. She expressed her appreciation at being given the
opportunity to serve on the board.
SENATOR JACKO moved that a letter be sent to Senate President
Halford stating that the committee has held a confirmation hearing
on the appointment of Dr. Laurie Dahms to the Violent Crimes
Compensation and there were no stated objections to her
appointment. Hearing no objection, it was so ordered.
SENATOR TAYLOR brought SB 362 (OMNIBUS INSURANCE REFORM) before the he
committee, noting that at a previous hearing on the bill the
insurance commissioner assured that the committee that most of the
legislation consists of technical changes.
SENATOR JACKO moved that SB 362 be passed out of committee with
individual recommendations. Hearing no objection, it was so
ordered.
Number 142
SENATOR TAYLOR brought CSSSHB 420(STA)(efd am) (LIMITED LIABILITY
COMPANIES) before the committee as the next order of business.
BOB MANLEY, testifying from Anchorage via the teleconference
network, stated his support for HB 420. He noted he is chairman of
the Working Group on Limited Liabilities Companies, made up of
members of the tax and business law section of the Alaska Bar
Association and members of the Alaska Society of CPA's.
Mr. Manley said limited liability companies is a new business form
that provides operational and federal income tax and estate tax
advantages to Alaska businesses. He pointed out that 38 states
have passed limited liability company legislation, and it is
anticipated that all 50 states will have such legislation within
the next two years.
Mr. Manley urged passage of the legislation this session because he
believes it is important for attracting capital for investments
from outside to Alaska.
Number 191
SENATOR LITTLE said it was her understanding that limited liability
companies can have some additional tax advantages that are more
advantageous than S corporations. MR. MANLEY said the only
difference between an S corporation and a C corporation is for
income tax purposes. Basically, the investors in a C corporation
are subject to double taxation. A limited liability company gives
true partnership tax treatment which gives a lot more tax
flexibility and a lot more operational flexibility.
Number 230
SENATOR JACKO asked how this form of business structure fits within
the international marketplace, and would it be available as a joint
venture form to go together with an offshore fishing company from
a foreign country. MR. MANLEY answered that it would be available
so that an offshore company could form a joint venture with an
Alaskan corporation, and they would act as a limited liability
company. He said offshore companies are obligated right now to pay
taxes, so it shouldn't make any difference in terms of Alaska
corporate income tax.
Number 270
There being no further questions on HB 420, SENATOR TAYLOR asked
for the pleasure of the committee.
SENATOR JACKO moved that CSSSHB 420(STA)(efd am) be passed out of
committee with individual recommendations. Hearing no objection,
it was so ordered.
Number 285
SENATOR TAYLOR brought HB 445 am (DWI LAWS) before the committee as as
the next order of business. He pointed out that a Senate bill had
moved out of committee earlier which encompassed a provision that
the third-time DWI offender would be a felony conviction, a
forfeiture and seizure of vehicle provision, as well as adding
antibuse as an alternative that the court may use. He directed
attention to a proposed Judiciary SCS, which would make HB 445
identical to the Senate bill.
SENATOR LITTLE moved that SCS HB 445(JUD) be adopted. Hearing no
objection, the motion carried.
SENATOR JACKO moved that SCS HB 445(JUD) be passed out of committee
with individual recommendations. Hearing no objection, it was so
ordered.
Number 315
SENATOR TAYLOR introduced CSHJR 43(FIN) (RIGHTS OF CRIME VICTIMS;
CRIMINAL ADMIN) as the next order of business.
REPRESENTATIVE BRIAN PORTER, prime sponsor of HJR 43, directed
attention to a Judiciary SCS, which, he said, was the result of a
concern raised by Senator Donley at a previous hearing on the
legislation.
SENATOR HALFORD moved that SCS CSHJR 43(JUD) be adopted. Hearing
no objection, the motion carried.
Number 321
SENATOR LITTLE asked if this amendment to the Constitution will
change the juvenile justice system as well. REPRESENTATIVE PORTER
answered that the Section 12 change from excessive punishment to
criminal administration is meant to address that question. Criminal
administration is a term of art that only refers to adult criminal
prosecution, so this would not be affecting the juvenile justice
system. SENATOR LITTLE said that addressed her concern because her
preference is to have a priority to rehabilitate or reform
juveniles, whereas this order is more acceptable for adults.
SENATOR TAYLOR noted that was also Senator Donley's concern, and he
had recommended inserting the word "criminal" and to remove the
word "penal" on lines 5 and 7.
Number 340
MARGO KNUTH, Department of Law, voiced her approval of the
Judiciary SCS.
Number 347
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and
Sexual Assault, stated the Council's support for HJR 43. She
stressed the importance as a state to include victims in their need
to have access to information and participation in the process.
Number 360
SENATOR TAYLOR stated HJR 43 would be held until the next meeting
of the committee so that Senator Donley could look at the changes
made in the Judiciary SCS.
Number 370
SENATOR TAYLOR brought CSHB 362(HES) am (CHILD SUPPORT:
CRIMINAL/CIVIL REMEDIES) before the committee. He directed
attention to a proposed Judiciary SCS, which addresses Senator
Donley's concern that families be able to at least show the court
that they have made a reasonable effort to restrain their child,
and that that could be utilized as a defense against suit.
PHIL PETRI, Child Support Enforcement Division, Department of
Revenue, explained that the primary purpose of the first part of
the bill is to change the statute of limitations, and the second
part relates to aiding and abetting an individual in not paying
their child support. He urged passage of the Judiciary SCS,
stating that the division vitally needs the change to the statute
of limitations, and the aiding and abetting portion will be a
helpful tool to try to increase collections.
Number 386
SENATOR TAYLOR pointed out that in the Judiciary SCS the word
"person" was changed to "obligor."
There being no further testimony on HB 362, SENATOR TAYLOR stated
he would entertain a motion on the committee substitute.
SENATOR LITTLE moved that SCS CSHB 362(JUD) be adopted. Hearing no
objection, the motion carried.
SENATOR LITTLE moved that SCS CSHB 362(JUD) be passed out of
committee with individual recommendations. Hearing no objection,
it was so ordered.
Number 410
SENATOR TAYLOR brought CSHB 367(JUD) am (PROHIBITED HIGHWAY
ADVERTISING) before the committee as the next order of business.
DAVID KAMRATH, staff to Representative Harley Olberg, requested
that the committee rescind its previous action in changing the size
of the sign from 8 x 12 to 4 x 8. He pointed out that the federal
regulation allows up to 650 square feet, so he thinks that 96
square feet is being conservative.
Number 420
SENATOR LITTLE voiced concern about what the state's highways are
going to be look like if the bill passes because each of the
businesses can have up to four signs. She added that she does not
think the change made by the committee it its committee substitute
is unreasonable.
Number 435
SENATOR HALFORD moved that on page 2, line 26 of the proposed
Judiciary SCS, change the size of the back to 8 x 12. SENATOR
LITTLE objected. The roll was taken with the following result:
Senators Taylor, Halford and Jacko voted "Yea" and Senator Little
voted "Nay." The Chairman stated the motion carried, and because
this was the only change orignally made, there was no Judiciary SCS
before the committee.
SENATOR HALFORD moved that CSHB 367(JUD) am be passed out of
committee with individual recommendations. SENATOR LITTLE
objected. The roll was taken with the following result: Senators
Halford, Taylor and Jacko voted "Yea" and Senator Little voted
"Nay." The Chairman stated CSHB 367(JUD) am would move out of
committee with individual recommendations.
Number 465
SENATOR TAYLOR brought CSHB 214(JUD) (DISCLOSURE OF MINOR'S RECORDS DS
BY PARENT) before the committee as the next order of business.
ELEANOR ROSER, staff to Representative Ramona Barnes, explained
that the legislation was introduced by the Legislative Council at
the suggestion of the Ombudsman. It will bring the Legislature and
some other agencies into the confidentiality laws, allowing a
constituent to go to a legislator or agency to present a grievance.
Number 515
SENATOR HALFORD moved that CSHB 214(JUD) be passed out of committee
with a "do pass" recommendation. Hearing no objection, it was so
ordered.
Number 525
SENATOR TAYLOR introduced CSHB 277(JUD) (INDEMNIFICATION OF PUBLIC C
EMPLOYEES) as the next order of business.
REPRESENTATIVE BRIAN PORTER, prime sponsor of HB 277, spoke to a
problem brought to his attention by an individual and a group from
a utility company in Anchorage that is owned by the city. One of
the managers of the utility company tried to purchase a house and
found that on his credit rating was a lawsuit that was filed
against the utility. Because the municipality had a policy but not
a law that provided that he would be indemnified, the individual
had difficulty in obtaining credit sufficient enough to purchase
the house because of the lawsuit.
HB 277 codifies state policy and the policy of the Municipality of
Anchorage, as well as many other municipalities, that the
municipality will indemnify the actions or omissions of an employee
who was nothing more than negligent when performing within the
scope of his duty as an employee and as an employee during that
period of time. It would not indemnify a person for gross
negligence and it would not indemnify an individual against
punitive damages.
Number 565
SENATOR TAYLOR questioned that if, in fact, there was negligence on
the part of the employee, does the employee also bear some
responsibility. He said this will set in statute a policy that we
are going to absolve our employees of their responsibility because
we are going to indemnify them. REPRESENTATIVE PORTER agreed that
the bill, in effect, is codifying common law as well as common
policy for the state and the majority of the municipalities. He
related that the Alaska Municipal League does not ever endorse any
statute proposal that is a "mandate" on municipalities or boroughs,
but they have submitted a letter of no objection to HB 277. He
also pointed out that the bill contains a provision that the
employer may reserve their right to dispute their obligation to
indemnify or defend. Further, the bill excludes the university and
school districts because this is already provided in statute to its
employees.
TAPE 94-44
Number 015
SENATOR HALFORD asked if in the case of a little municipality with
no assets, is this indemnifying the individual who represented that
municipality, or is this just guaranteeing a defense.
REPRESENTATIVE PORTER responded that this would be indemnifying the
individual, and within that is the somewhat presumed interest to
defend if that is the position that the municipality or the public
employer is in. SENATOR TAYLOR added that it appears to him that
the legislation only impacts the relationship between the employer
and the employee, and the victim would still have the right to go
after either or both. SENATOR HALFORD observed that if the victim
sues both the employer and employee, if the employer has got the
money, he pays; if the employee has got the money, he pays; and if
the city goes bankrupt the victim still recovers, but the person
who can't recover is the employee against his own employer because
the employer (the city) is bankrupt.
Number 075
JEFF BUSH, a Juneau attorney, said this issue is something that he
is intimately familiar with due to some litigation that he has been
involved in during the last four to five months. In Haines, the
borough was sued for action that the borough school board took and
the individual assembly members were also sued as individuals. By
the time the case was dismissed, the makeup of the assembly had
entirely switched, politically speaking, and, therefore, it became
a political issue on whether or not these people were going to be
reimbursed for their attorneys fees.
Mr. Bush said the legislation would essentially say that it is at
least the responsibility of the borough to indemnify these people
provided they did not act with gross negligence or wilful conduct.
He added that this is not an uncommon situation. What makes it
uncommon is the fact that the borough is hesitant to do so after
the fact. He noted that individual state employees get sued
frequently, and the state, as a general practice, has always picked
up the tab on their legal fees with a clarification that if there
is punitive damages assessed against the individual or intentional
conduct, then they are going to have to pay.
Number 135
SENATOR HALFORD asked if an employee can be fired for simple
negligence. REPRESENTATIVE PORTER responded that an employee can
be fired for negligence in performing their job, but the bill would
not allow an individual being terminated so as to avoid the
indemnification that they otherwise are by law or policy required
to provide. SENATOR HALFORD asked if language could be added to
the bill that specifically says the employer may fire the employee
if they are found liable for the negligence of the employee,
although they still have to defend the employee. REPRESENTATIVE
PORTER answered that he couldn't see any reason why not, but he
questioned if it should be qualified to the extent of not
conflicting with a prior union agreement. SENATOR LITTLE said she
would be in favor of something like that if it was intentional and
gross negligence, but for simple negligence she is reluctant to
provide that ability to the employer. SENATOR JACKO commented that
if that language were put in, it would be an incentive for both the
employer and employee for a settlement versus a judgement.
After further discussion, SENATOR TAYLOR stated an amendment
relating to Senator Halford's suggestion that an employee may be
fired for simple negligence would be drafted and before the
committee for its consideration the following Monday. SENATOR
LITTLE stated her opposition to the amendment.
Number 266
SENATOR TAYLOR brought CSHB 334(FIN) am (SENTENCING;3RD SERIOUS
FELONY OFFENDER) before the committee.
REPRESENTATIVE CON BUNDE, prime sponsor of HB 334, pointed out that
fiscal impact will not incur by passage of this legislation for a
period of 12 to 15 years because those current people who would
commit a third felony will already be incarcerated for 12 to 15
years. He added that the fiscal impact and the amount it is
diminished is an imponderable when it comes to how much of a
deterrent it will be with the possibility of a long-term sentence
facing a career criminal.
Number 300
SENATOR LITTLE referred to the fiscal note from the Department of
Corrections. She said if the incarcerents currently in the system
already have two or three of these eligible offenses against them,
the effects would be coming much more rapidly than the fiscal note
would imply. PATTY SWENSON, staff to Representative Bunde
confirmed that the felonies do accumulate and there are people in
prison now with some felonies, but she thinks the Department of
Corrections feels that they will be in prison long enough so that
there will be no immediate fiscal impact.
Number 329
SENATOR TAYLOR commented that when the same legislation was signed
into law in California, Governor Pete Wilson said it would mean
that they would need to build additional facilities over the next
several years for 82,000 additional prisoners. REPRESENTATIVE
BUNDE responded that California's population base is different than
Alaska's population base, and this proposed legislation is written
much more tightly and relates only to crimes against people.
Number 370
SENATOR LITTLE said she was generally supportive of the
legislation, but is very concerned about the impacts to the
Department of Corrections and other departments by passing such a
bill. She asked Representative Bunde if he is personally willing
to financially support those systems that are going to be impacted
by imposition of this legislation. REPRESENTATIVE BUNDE answered
that he would.
Number 390
SENATOR HALFORD moved that CSHB 334(FIN) am be passed out of
committee with individual recommendations. Hearing no objection,
it was so ordered.
Number 395
SENATOR TAYLOR brought HB 316 RULE (AGAINST PERPETUITIES) before
the committee as the final order of business.
TIM BENINTENDI, staff to Representative Carl Moses, explained this
law deals with issues relating to the inheritance of property and
identifying persons who may eventually have an interest in that
property. It is also designed to prevent unreasonably long lasting
restrictions on the disposal of property. Alaska's current statute
was last updated in 1983, and passage of HB 316 will simplify the
administration of estates and trusts, as well as reducing
perpetuity litigation.
Number 435
ART PETERSON, a Uniform Law Commissioner for the State of Alaska,
stated his support for HB 316. He said the legislation offers the
"third generation" of statutory attempts to improve the common law
of rule. Alaska has on the books the "second generation" version,
and it has created its own kinds of problems.
Number 530
SENATOR JACKO moved that HB 316 be passed out of committee with
individual recommendations. Hearing no objection, it was so
ordered.
There being no further business to come before the committee, the
meeting was adjourned at 1:10 p.m.
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