03/31/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing Legislative Ethics Committee | |
| SJR28 | |
| HB101 | |
| SB190 | |
| HB108 | |
| SB249 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | SB 249 | TELECONFERENCED | |
| + | HB 108 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 101 | TELECONFERENCED | |
| += | SB 190 | TELECONFERENCED | |
| += | SJR 28 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 31, 2010
1:33 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Dennis Egan
Senator John Coghill
MEMBERS ABSENT
Senator Lesil McGuire
COMMITTEE CALENDAR
CONFIRMATION HEARINGS
Legislative Ethics Committee
ANTIONETTE MALLOTT
- CONFIRMATION ADVANCED
SENATE JOINT RESOLUTION NO. 28
Relating to the Ecumenical Patriarchate and religious rights.
- MOVED SJR 28 OUT OF COMMITTEE
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 101(JUD)
"An Act exempting the full value of life insurance and annuity
contracts from levy to satisfy a debt, and amending the
description of earnings, income, cash, and other assets relating
to garnishment of life insurance proceeds payable upon the death
of an insured."
- HEARD AND HELD
SENATE BILL NO. 190
"An Act relating to biometric information."
- HEARD AND HELD
SENATE BILL NO. 249
"An Act relating to official action by electronic transmission,
to records, and to public records."
- HEARD AND HELD
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 108(JUD) AM
"An Act relating to real property foreclosures, to the sale of
property on execution, and to deeds of trust."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SJR 28
SHORT TITLE: ECUMENICAL PATRIARCHATE OF TURKEY
SPONSOR(s): SENATOR(s) MEYER
02/18/10 (S) READ THE FIRST TIME - REFERRALS
02/18/10 (S) JUD
03/26/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/26/10 (S) -- MEETING CANCELED --
03/29/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/29/10 (S) Heard & Held
03/29/10 (S) MINUTE(JUD)
BILL: HB 101
SHORT TITLE: EXEMPTIONS: LIFE INSURANCE; ANNUITIES
SPONSOR(s): REPRESENTATIVE(s) COGHILL
01/30/09 (H) READ THE FIRST TIME - REFERRALS
01/30/09 (H) L&C, JUD
02/18/09 (H) L&C AT 3:15 PM BARNES 124
02/18/09 (H) Moved Out of Committee
02/18/09 (H) MINUTE(L&C)
02/20/09 (H) L&C RPT 3DP 3NR
02/20/09 (H) DP: LYNN, CHENAULT, COGHILL
02/20/09 (H) NR: BUCH, HOLMES, OLSON
03/02/09 (H) JUD AT 1:00 PM CAPITOL 120
03/02/09 (H) Heard & Held
03/02/09 (H) MINUTE(JUD)
03/16/09 (H) JUD AT 8:00 AM CAPITOL 120
03/16/09 (H) Heard & Held
03/16/09 (H) MINUTE(JUD)
03/19/09 (H) JUD AT 1:00 PM CAPITOL 120
03/19/09 (H) Moved CSHB 101(JUD) Out of Committee
03/19/09 (H) MINUTE(JUD)
03/23/09 (H) JUD RPT CS(JUD) NT 6DP
03/23/09 (H) DP: LYNN, GRUENBERG, COGHILL,
DAHLSTROM, GATTO, RAMRAS
04/03/09 (H) TRANSMITTED TO (S)
04/03/09 (H) VERSION: CSHB 101(JUD)
04/06/09 (S) READ THE FIRST TIME - REFERRALS
04/06/09 (S) L&C, JUD
04/14/09 (S) L&C AT 1:00 PM BELTZ 211
04/14/09 (S) Moved CSHB 101(JUD) Out of Committee
04/14/09 (S) MINUTE(L&C)
04/15/09 (S) L&C RPT 4DP 1NR
04/15/09 (S) DP: PASKVAN, MEYER, THOMAS, DAVIS
04/15/09 (S) NR: BUNDE
04/17/09 (S) JUD AT 1:30 PM BELTZ 211
04/17/09 (S) Heard & Held
04/17/09 (S) MINUTE(JUD)
03/29/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/29/10 (S) Scheduled But Not Heard
BILL: SB 190
SHORT TITLE: BIOMETRIC INFORMATION FOR ID
SPONSOR(s): SENATOR(s) WIELECHOWSKI
04/10/09 (S) READ THE FIRST TIME - REFERRALS
04/10/09 (S) STA, JUD
03/02/10 (S) STA AT 9:00 AM BELTZ 105 (TSBldg)
03/02/10 (S) Heard & Held
03/02/10 (S) MINUTE(STA)
03/11/10 (S) STA AT 9:00 AM BELTZ 105 (TSBldg)
03/11/10 (S) Moved CSSB 190(STA) Out of Committee
03/11/10 (S) MINUTE(STA)
03/12/10 (S) STA RPT CS 1DP 3AM SAME TITLE
03/12/10 (S) DP: KOOKESH
03/12/10 (S) AM: MENARD, PASKVAN, FRENCH
03/26/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/26/10 (S) -- MEETING CANCELED --
BILL: SB 249
SHORT TITLE: PUBLIC RECORDS/ELECTRONIC TRANSMISSIONS
SPONSOR(s): SENATOR(s) ELLIS
02/01/10 (S) READ THE FIRST TIME - REFERRALS
02/01/10 (S) STA, JUD
03/23/10 (S) STA RPT 5DP
03/23/10 (S) DP: MENARD, FRENCH, MEYER, PASKVAN,
KOOKESH
03/23/10 (S) STA AT 9:00 AM BELTZ 105 (TSBldg)
03/23/10 (S) Moved SB 249 Out of Committee
03/23/10 (S) MINUTE(STA)
03/31/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: HB 108
SHORT TITLE: PROP. FORECLOSURE/EXECUTION/TRUST DEEDS
SPONSOR(s): REPRESENTATIVE(s) RAMRAS
02/02/09 (H) READ THE FIRST TIME - REFERRALS
02/02/09 (H) L&C, JUD
02/23/09 (H) L&C AT 3:15 PM BARNES 124
02/23/09 (H) Heard & Held
02/23/09 (H) MINUTE(L&C)
03/13/09 (H) L&C AT 3:15 PM BARNES 124
03/13/09 (H) -- MEETING CANCELED --
03/16/09 (H) L&C AT 3:15 PM BARNES 124
03/16/09 (H) Moved CSHB 108(L&C) Out of Committee
03/16/09 (H) MINUTE(L&C)
03/18/09 (H) L&C RPT CS(L&C) 1DP 5NR
03/18/09 (H) DP: CHENAULT
03/18/09 (H) NR: BUCH, COGHILL, NEUMAN, HOLMES,
OLSON
03/25/09 (H) JUD AT 1:00 PM CAPITOL 120
03/25/09 (H) Scheduled But Not Heard
03/30/09 (H) JUD AT 1:00 PM CAPITOL 120
03/30/09 (H) Heard & Held
03/30/09 (H) MINUTE(JUD)
04/03/09 (H) JUD AT 1:00 PM CAPITOL 120
04/03/09 (H) Moved CSHB 108(JUD) Out of Committee
04/03/09 (H) MINUTE(JUD)
04/07/09 (H) JUD RPT CS(JUD) 2DP 4NR 1AM
04/07/09 (H) DP: COGHILL, RAMRAS
04/07/09 (H) NR: LYNN, GRUENBERG, DAHLSTROM, GATTO
04/07/09 (H) AM: HOLMES
04/11/09 (H) TRANSMITTED TO (S)
04/11/09 (H) VERSION: CSHB 108(JUD) AM
04/13/09 (S) READ THE FIRST TIME - REFERRALS
04/13/09 (S) L&C, JUD
04/16/09 (S) L&C AT 3:45 PM BELTZ 211
04/16/09 (S) Moved SCS CSHB 108(L&C) Out of
Committee
04/16/09 (S) MINUTE(L&C)
04/17/09 (S) L&C RPT SCS 1NR 4AM SAME TITLE
04/17/09 (S) NR: DAVIS
04/17/09 (S) AM: PASKVAN, MEYER, THOMAS, BUNDE
03/31/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
ANTOINETTE MALLOTT, Nominee
Legislative Ethics Committee
Juneau, AK
POSITION STATEMENT: Testified as nominee to the Legislative
Ethics Committee.
RYNNEVIA MOSS, staff
to Senator Coghill
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Provided information related to HB 101 on
behalf of the sponsor.
LINDA HULBERT, Broker
New York Life Insurance Company
Fairbanks, AK
POSITION STATEMENT: Provided supporting testimony for HB 101.
GEORGE ASCOTT, Staff
to Senator Wielechowski
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Explained the changes in the CS for SB 190.
RICK SVOBODNY, Deputy Attorney General
Department of Law (DOL)
Juneau, AK
POSITION STATEMENT: Raised concerns about SB 190 on behalf of
the department.
JEFFREY MITTMAN, Executive Director
ACLU of Alaska
Anchorage, AK
POSITION STATEMENT: Testified in support of SB 190
BILL SCANNELL, representing himself
Anchorage, AK
POSITION STATEMENT: Testified in strong support of SB 190.
JANE PIERSON, Staff
to Representative Jay Ramras
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Provided an explanation of the changes to
HB 108 on behalf of the sponsor.
STEPHEN ROUTH, Attorney
Routh Crabtree, APC
Anchorage, AK
POSITION STATEMENT: Provided supporting information related to
HB 108.
DENNIS FENERTY, Attorney
Groh Eggers LLC
POSITION STATEMENT: Testified in support of HB 108.
MAX HENSLEY, Staff
to Senator Johnny Ellis
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Introduced SB 249 on behalf of the sponsor.
ACTION NARRATIVE
1:33:57 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:33 p.m. Present at the call to
order were Senators Coghill, Wielechowski and French.
^Confirmation Hearing Legislative Ethics Committee
1:34:08 PM
CHAIR FRENCH announced the first order of business to come
before the committee would be the confirmation hearing of
Antoinette Mallott to the Legislative Ethics Committee.
ANTOINETTE MALLOTT, Nominee, Legislative Ethics Committee, said
she has lived in Juneau for over 30 years and is a retired
school teacher who still volunteers. She spends time in Juneau
and in Yakutat and is involved in both communities. In Yakutat
she works part time for Catholic Community Services as a care-
coordinator for elders and in Juneau she volunteers in the
school.
CHAIR FRENCH asked what piqued her interest in serving on the
Legislative Ethics Committee.
MS. MALLOTT explained that Chief Justice Carpeneti called and
asked if she would be interested in serving. They were looking
for a woman from Southeast who could add diversity to the
committee. She thought about it for a week and agreed to be
considered.
SENATOR FRENCH asked if she had watched or listened to the
committee.
MS. MALLOTT answered no, but she's been reading the information
booklet and feels comfortable assuming the position.
SENATOR WIELECHOWSKI commented that teaching 2nd and 3rd grade
makes her eminently qualified.
MS. MALLOTT agreed that her teaching experience is relevant. She
also served as the facilitator on the school site council where
she had dealings with parents, teachers, and staff.
SENATOR COGHILL said fairness will be the key, but there are
also some interesting rules to live by that will require
considerable study.
MS. MALLOTT agreed that the list is extensive.
1:39:06 PM
SENATOR WIELECHOWSKI moved to forward the name Antoinette
Mallott to the full body for consideration. He read the
following:
In accordance with AS 24.60.130, the Judiciary
Committee reviewed the following and recommends the
appointment be forwarded to the Senate for
consideration to the Select Committee on Legislative
Ethics - Antoinette Mallott. This does not reflect an
intent by any member to vote for or against the
confirmation of the individual.
There being no objection, the name Antoinette Mallott was
forwarded to the full body for consideration.
SJR 28-ECUMENICAL PATRIARCHATE OF TURKEY
1:40:05 PM
SENATOR FRENCH announced the consideration of SJR 28. It was
heard previously and public testimony was taken. He noted the
letter from the national coordinator of the State Religious
Freedom Resolution Project that points out that this same effort
is being made with the Office of the President, the U.S. Senate,
the U.S. House of Representatives, and others, In the fall, all
the resolutions will be given to Secretary of State Hillary
Clinton to forward to the Government of Turkey.
SENATOR WIELECHOWSKI moved to report SJR 28 from committee with
individual recommendations and attached fiscal note(s). There
being no objection, SJR 28 moved from the Senate Judiciary
Standing Committee.
HB 101-EXEMPTIONS: LIFE INSURANCE; ANNUITIES
1:41:33 PM
CHAIR FRENCH announced the consideration of HB 101 and asked for
a motion to adopt the proposed Senate committee substitute (CS).
SENATOR WIELECHOWSKI moved to adopt the Senate CS for CS for HB
101, labeled 26-LS0176\T, as the working document.
CHAIR FRENCH objected for discussion purposes and asked Senator
Coghill for an explanation.
SENATOR JOHN COGHILL, sponsor of HB 101 as Representative
Coghill, said the proposed Senate CS would exempt the value of
unmatured life insurance and annuity contracts from creditors
while still letting people be accountable for their credit
obligations. He deferred questions or clarification to his
staff, Ms. Moss.
CHAIR FRENCH asked Ms. Moss to give a summary of the bill since
the committee hadn't heard it since last session when a few
issues cropped up.
RYNNEVIA MOSS, staff to Senator Coghill, said the issue was that
the $10,000 exemption for matured life insurance and annuity
contracts was removed from [AS 09.38.025(a)] and inserted in AS
09.38.015, which is property exempt without limitation. This
caused legitimate concern about exempting the entire amount of
an unmatured life insurance policy or annuity.
The sponsor asked an insurance broker to calculate the income
from $250,000 and $500,000 annuities to see if a $500,000
exemption would allow a reasonable retirement. He feels that
this is important because a lot of blue collar workers, small
businesses, and people who rely on Social Security don't have
sufficient income at retirement for a decent living, she said.
1:44:33 PM
MS. MOSS explained that the proposed CS would exempt up to
$500,000 from attachment by creditors. According to some
estimates this would provide income of $2,600 per month, which
is reasonable. She noted that the packets contain charts and
calculations supporting this claim.
SENATOR FRENCH asked if the estimated $2,600 per month income
relies in part on the return of principal.
MS. MOSS deferred to Ms. Hulbert.
LINDA HULBERT, Broker, New York Life Insurance Company,
Fairbanks, AK, informed the committee that she is the broker who
calculated the potential income for someone who wanted to take
income from an annuity or the death benefits of a life insurance
policy of $500,000. That amount of money would provide a
lifetime income for a couple or the surviving spouse, but each
individual has a lot of options with respect to how those funds
would be distributed. For example, they could opt to maximize
the income throughout their life or get a guaranteed income for
a period of years or get some income and leave some money for
their heirs. "But $500,000 would provide about $2,500 per month
to supplement someone's retirement," she said. Ms. Hulbert said
this is a reasonable amount and she supports the proposed Senate
CS.
SENATOR EGAN joined the committee.
SENATOR FRENCH asked Ms. Moss if organized labor supports the
bill.
MS. MOSS related that her conversations with labor
representatives have been positive. In fact, trade unions are
very large clients of annuities and life insurance to enhance
retirement, she said.
SENATOR COGHILL reminded the committee that if the Senate CS is
adopted, a concurrent resolution will have to travel with the
bill.
CHAIR FRENCH removed his objection to the CS. Finding no further
objection, he announced that version T is before the committee
and that the concurrent resolution would travel with the bill.
CHAIR FRENCH announced he would hold SCS for CS for HB 101 until
Friday.
SB 190-BIOMETRIC INFORMATION FOR ID
CHAIR FRENCH announced the consideration of SB 190. [CSSB
190(STA) was before the committee.]
1:49:58 PM
SENATOR WIELECHOWSKI said the purpose of SB 190 is to update a
law that protects the privacy rights of citizens from emerging
new technologies. In 2004 the Legislature unanimously passed a
bill by Senator Donny Olson that outlaws the collection,
analysis or storage of a law-abiding citizen's DNA without their
written consent. SB 190 extends that protection to other forms
of biometric information because emerging technology for
individual recognition threatens privacy rights. The Alaska
Constitution has the strongest provision in the nation regarding
individual privacy rights and this bill meshes very well with
that constitutional provision, he said.
The Legislature recently rejected adopting the federal Real ID
Act because it would give the federal government the ability to
track people through radio frequency ID chips in their driver's
license. But now people can be tracked through facial
recognition or retinal scan technologies, which greatly impacts
individual privacy rights, he said.
SENATOR WIELECHOWSKI reported that his office was approached by
a citizen in 2008 who was refused admittance to a state CPA exam
after he offered his driver's license, passport, and Social
Security card as identification, but he refused to submit to
fingerprinting. He inspired the bill.
1:52:42 PM
CHAIR FRENCH related that he heard the bill in a previous
committee and has no questions.
GEORGE ASCOTT, Staff to Senator Wielechowski, said the packet
contains an explanation of the changes that occurred in version
T.
SENATOR COGHILL observed that the definitions for "biometric
information" on page 3, lines 6-8, are quite broad and seem to
be terms of art. He asked if the terms had been litigated and if
facial recognition is different than a photograph.
MR. ASCOTT said a photograph is a picture whereas a facial
recognition system has a camera, software to capture information
beyond the image, and a computer system to classify the elements
and differentiate between faces.
1:55:31 PM
SENATOR COGHILL asked about the circumstance of a private
investigator who is trying to prove that somebody was at a crime
scene and in the process collects some of this biometric
information.
MR. ASCOTT said the Department of Law has similar concerns,
specifically with regard to fingerprints because they sometimes
rely on fingerprints that a private investigator may have
collected. He clarified that thwarting common practices is not
the intent.
SENATOR COGHILL said he shares the sponsor's concern about
protecting personal identity, but he doesn't want to
inadvertently open the door for civil action for doing things
that are common practice.
1:58:10 PM
RICK SVOBODNY, Deputy Attorney General, Department of Law (DOL),
explained that in 2004 when Title 18 was amended to deal with
DNA, there was concern that much more information could be
obtained from a DNA sample than simple identification. Science
was and is moving very fast and that's why that legislation was
limited to DNA. Since then biometric information like voice
recognition has become ubiquitous. Phone companies retain voices
to help "teach" their software to read different accents, Google
does the same thing with spell checking on search requests, and
Las Vegas casinos use visual recognition software to stop card-
counters from coming into the casinos.
2:01:26 PM
MR. SVOBODNY said the foregoing examples don't relate to the
department too much, but collecting or retaining fingerprints
does because DOL often relies on private investigators from
insurance companies to do arson examinations. AS 18.70.090 is a
specific statute that says that the police can and should
cooperate with private investigators from insurance companies in
arson investigations. For that reason, fingerprints may well be
collected and retained.
Although the changes in the CS exclude government agencies, it
doesn't include the agents of those government agencies. For
example, village public safety officers (VPSO) don't fit the
definition of a government agency and they wouldn't be able to
collect or transmit fingerprint or DNA samples from a crime
scene under this. Tribal public safety officers (TPSO) would be
similarly limited.
2:04:07 PM
SENATOR WIELECHOWSKI highlighted that page 2, lines 1-12,
specifically say that the prohibitions in subsection (a) do not
apply to DNA samples or other biometric information collected
for law enforcement purposes. He asked if that exclusionary
provision wouldn't apply to those situations.
MR. SVOBODNY said an ambiguity in a criminal statute always goes
to the defense. "Because you define out from governmental
entities VPSOs [and] TPSOs - there's that ambiguity that means
the state in a criminal case loses."
SENATOR FRENCH asked if he's saying that the exclusionary
provision conflicts with Section 3.
MR. SVOBODNY said yes on page 2, line 31.
SENATOR FRENCH asked if it would alleviate his concern to say,
"a person who is not a governmental entity or who is not engaged
in a law enforcement purpose commits the crime…"
MR. SVOBODNY answered yes.
2:06:20 PM
MR. SVOBODNY said his two final points are civil as opposed to
criminal. First, this creates a private right of action and
people can and will sue. Although this won't affect the state
very much, he said he wanted to mention it as a point of ethics.
Second, he said he doesn't know what the "willing" requirement
for informed consent on page 1, line 10, really means.
MR. SVOBODNY summarized that DOL's concern centered on the
agency issue and dealing with insurance companies that are
providing services to law enforcement or others who are acting
at the request of law enforcement.
2:08:47 PM
SENATOR COGHILL asked his perspective on calling the definitions
for biometric information terms of art and questioned whether
the meaning of "collect" will be problematic with this much
broader category.
MR. SVOBODNY acknowledged that he was concerned about the word
"collect" in light of the expanded area of things you cannot
collect. He related that for crime to occur there will have to
be a culpable mental state, but unless it's defined differently,
the person will have to knowingly collect. A larger concern with
the current language relates to retention although he can't
imagine people being prosecuted for inadvertently collecting and
retaining fingerprints. In fact, an Alaska court has said that a
person does not have a privacy interest in their fingerprints
just as they don't have a privacy interest in their address or
face. This would change that court decision by statute, he said.
SENATOR COGHILL asked if the right to action with respect to
collection would be because the intention was to cause the
person damage or because another person or entity would gain.
2:11:45 PM
MR. SVOBODNY said the bill does have a $5,000 penalty provision
and a higher penalty provision if the person is seeking
financial gain from someone who obtained or retained their voice
for economic benefit.
SENATOR COGHILL asked if there's any reason to be concerned with
the definitional terms of art under biometric information.
MR. SVOBODNY said he doesn't understand facial recognition to
mean taking a photograph. He hasn't done research to know if
facial recognition and voice recognition have specific meanings,
but he assumes that they do. Certainly there are lots of
examples of their use.
2:14:09 PM
SENATOR COGHILL said these definitions will be very important if
someone wants to bring action. The bill specifies certain fines,
but he's trying to figure out how you defend yourself.
JEFFREY MITTMAN, Executive Director, ACLU of Alaska, thanked the
sponsor for introducing good, proactive legislation that
appropriately balances the needs of law enforcement and the
constitutional rights of Alaskans. SB 190 expands current law to
include biometric information, which has become important in
business and law enforcement. The ACLU of Alaska supports the
bill, he concluded.
SENATOR COGHILL asked if he had studied any of the terms under
the definition of biometric information.
MR. MITTMAN replied he isn't familiar with any specific case law
that would apply in this context.
2:16:50 PM
BILL SCANNELL, representing himself, reported that he is a
privacy activist speaking in strong support of SB 190. He
suggested that the committee put things in perspective by
considering the difference between losing your wallet fifty
years ago and losing it today. Then you'd lose the money in your
wallet and now "when you lose your wallet in many ways you can
lose your life," he asserted. He cited the Clear program, which
was supposed to expedite a person's trip through airport
security, as an example. When that company went bankrupt, tens
of thousands of people found that their retina scans,
fingerprints, hand geometry, and facial patterns were being sold
to the highest bidder. People need to understand how important
these biometric issues are and the role of the state in
protecting all Alaskans from both misuse and poor
implementation, he said.
MR. SCANNELL asked the committee to think about two things. 1)
SB 190 will create an overall policy of buying technology that
is appropriate to the job at hand; and 2) this is a good pre-
emptive move to ensure that if a biometric program is found that
works, that biometric won't be wasted.
2:20:29 PM
CHAIR FRENCH asked Mr. Ascott if the bill had received any
pushback.
MR. ASCOTT aid the National Council of Life Insurers contacted
the sponsor and suggested an amendment to significantly narrow
the definition of biometrics. That was done, but the definition
may have to be narrowed further to remove the term "DNA" because
it's already been defined.
SENATOR COGHILL pointed out that the original legislation was
quite specific with respect to getting a DNA sample and holding
it for a period of time whereas this bill is significantly
broader. I'm open to suggestion, he said, but I really haven't
got my mind around how this is going to work. He said some of
his concerns about voice recordings and pictures have been
allayed, but how that information is collected could be
significant. Some of these things are very technical and
specific, but they aren't specific in the bill, he said.
2:23:23 PM
SENATOR WIELECHOWSKI said we'll sit down with you and the
Department of Law and try to iron out the concerns because we
don't want unintended consequences. What the bill is trying to
do is to stop the expansion of the surveillance society in the
U.S. - particularly in Alaska.
CHAIR FRENCH announced he would hold SB 190 in committee.
HB 108-PROP. FORECLOSURE/EXECUTION/TRUST DEEDS
CHAIR FRENCH announced the consideration of HB 108 and asked for
a motion to adopt the Senate committee substitute (CS).
2:24:46 PM
SENATOR WIELECHOWSKI moved to adopt Senate CS for CS for HB 108,
labeled 26-LS0318\M, as the working document.
CHAIR FRENCH objected for discussion purposes.
JANE PIERSON, Staff to Representative Jay Ramras, provided an
explanation of the changes.
Section 2 - language was deleted that required a newspaper to
have circulation and distribution of at least 500 copies or 10
percent of the judicial district, whichever is less. The
circulation requirements were deleted because it's covered by
the second class mailing permit. The idea is to allow smaller
newspapers to compete and drive down the high price of legal
notice of publication.
Section 7 - the word "escrow" was replaced with "trust account"
to make it easier for trustees to understand.
Section 10 - five days was changed to 10 days to allow more time
to find and correct errors from a sale. This is borough friendly
since boroughs are impacted when property goes to sale when it
shouldn't.
Section 13 - language relating to the bonding exemption for
title providers was deleted from page 11, lines 24-27. The
reasoning is that small title companies that have no special
expertise warranting an exemption shouldn't be granted one.
2:27:20 PM
A previous change expanded the list of qualified Internet sites
to include newspapers of general circulation so any newspaper
that qualifies to run legal ads will be qualified as an Internet
site.
Section 4 - the language requirement related to curing the
default up to two days prior to the sale date was deleted
because a default can now be cured up to the time of the sale.
AS 34.20.070(e) adds language and provides an exception to deeds
that were entered into before the effective date of the Act and
provides for a different time period to cure.
Section 6 - clarifies the time for the sale and curing the
default. It also states that if the sale is rescinded under
subsection (g), the deed of trust foreclosed in the rescinded
sale is restored to the validity and priority it had before the
sale.
2:30:38 PM
STEPHEN ROUTH, Attorney representing himself, Routh Crabtree,
APC, Anchorage, said he's worked on this bill for several years.
He reported that the complex Alaska foreclosure statutes
originally came from Oregon and have not been updated as the
Internet has grown. Thus, much of the bill focuses on updating
and cleaning up the statutes so that the court doesn't have to
define the statute. He noted that many of the proposed changes
are the result of expensive litigation.
Probably the most far-reaching change that's been discussed
relates to the Internet publication because that's where people
today get their information as opposed to newspapers. If the
bill were to pass, Alaska would be the sixth state to mandate
Internet publication of foreclosures. The proposed statute
includes information about how to do that so that people could
actually find the ads. The current version also opens Internet
advertisement to newspapers of general circulation. The only
caveat is that the newspaper cannot charge a fee to look at
these ads on the Internet.
2:33:26 PM
MR. ROUTH said the overarching goal of the changes is to enhance
fairness, much of which is geared to the auction process. This
is important because the foreclosure process does violence to a
property right - a person's property is being taken away outside
the judicial process. That person would want to know that it
would be a fair, open and, well-publicized auction without
opportunity for back-door deals. Everybody wins when the auction
attracts bidders, he said. The bank doesn't get the property
back in its portfolio, which avoids losses; the borrower likely
will get more for the property if there are more bidders; and
title companies avoid litigation. The Internet is key to
attracting bidders and this bill underscores that. Bids can be
made on the Internet if the trustee is so equipped. "The idea
being that somebody can sit in New York and buy property in
Homer," he said. This helps the borrower by increasing the
bidding pool.
SENATOR WIELECHOWSKI referenced Section 5, page 5, and recalled
that changing the notice requirement to a person who is in
actual physical possession was a concern last time the bill was
presented. He asked how that would work and why it's necessary.
2:36:04 PM
MR. ROUTH said he doesn't recall that this was an issue, but it
was borne of litigation. The issue is that you wouldn't know
that there was a lien on a property by examining the record. The
question is how to allow for a clean title in a foreclosure
auction process when there's an unrecorded lien.
SENATOR WIELECHOWSKI read the proposed amendment to AS
34.20.070(c), which talks about mailing a copy of the default
notice within 10 days after recording the notice, and asked the
necessity of adding that provision.
MR. ROUTH replied whoever is in that house is entitled to know
that possession is being disturbed. It could be a tenant who
would need to make other living arrangements. Responding to a
further question, he clarified that the owner gets notice
separate from the actual physical possession.
SENATOR WIELECHOWSKI asked the rationale for the proposed AS
34.20.070(f) in Section 6.
MR. ROUTH said this goes to the point he made earlier about an
unrecorded lien on a property. Typically these are mechanics
liens. He explained that a number of statutes provide that
people doing work on a house can record notice on the title so
they're given notice if there is a foreclosure and they can act
to protect their lien. If they don't do that it becomes a
judgment call which leads to litigation.
SENATOR WIELECHOWSKI asked if this is common in other states'
statues.
2:39:53 PM
MR. ROUTH said he's only aware of litigation on this in Alaska.
SENATOR WIELECHOWSKI asked if the proposed amendment to AS
34.20.080(e) in Section 9, which says a foreclosure may not be
postponed for more than 12 months unless a new notice of sale is
given under (a)(2) of the section, addresses an existing
problem.
MR. ROUTH said that's right. Prior to this the timeframe was
left to the discretion of the title insurance companies who
insure the sale so there was no certainty about the time.
SENATOR WIELECHOWSKI asked if the proposed change in Section 10
to the way cash proceeds of the sale are distributed is
substantially different than current law.
MR. ROUTH replied this is common practice, but this ensures that
everyone is compliant.
2:42:12 PM
DENNIS FENERTY, Attorney, Groh Eggers LLC, Anchorage, said he's
been doing foreclosures on behalf of lenders for more than 25
years and he applauds Mr. Routh for the work he's done on the
bill to make the process fair and to clarify uncertainties. He
agreed with Mr. Routh that the [unrecorded lien issue] is
problematic. It leaves lenders uncertain about whether they have
to look for someone with an interest in the property and that
creates a potential cloud. He observed that the notice
provisions are also being clarified and made certain and said he
agrees that the distribution of proceeds is common practice
rather than following the law. Among other good things, the bill
includes provisions for deceased borrowers. The current process
burdens the lender with the requirement to go to court and open
special probate whereas the bill addresses that fairly by
requiring reasonable notice.
MR. FENERTY said he didn't have a copy of the latest version of
the bill and he wanted to make certain that it still included
the Section 2 provision that Internet publication is available
to any newspaper of general circulation that maintains a
website.
CHAIR FRENCH confirmed that the proposed new AS 09.35.140(c)(1)
hadn't changed.
MR. FENERTY asked if the change in the description requirements
in Section 2 for a "newspaper of general circulation" had
relaxed the standard.
MS. PIERSON explained that the current version removed language
from Section 2 that required a paid distribution of at least 500
copies, or 10 percent of the total population of the judicial
district, whichever is less. The paid distribution of at least
500 copies is covered under the second class mailing permit in
the proposed AS 09.35.140(c)(2)(F)(3) in Section 2.
2:46:23 PM
MR. FENERTY expressed satisfaction that the current version
provides that newspapers of general circulation can host
foreclosure notifications. Previously he testified that for his
business he needs an alternative website to conduct foreclosures
and a place to post notifications. "This is a very good bill and
I do believe it's long overdue," he concluded.
MR. PIERSON summarized that HB 108 will modernize the non-
judicial foreclosure process and do a lot of good for the state.
MR. ROUTH added his belief that all the comments and concerns
that were expressed over the last several years have been
addressed to everyone's satisfaction.
SENATOR WIELECHOWSKI asked how the notification requirements
will fit rural Alaska.
MR. ROUTH explained that this adds the Internet publication, but
the requirement to advertize in a newspaper of general
circulation won't change.
SENATOR WIELECHOWSKI asked how foreclosure notification is
currently done in rural Alaska.
MR. ROUTH said it's by judicial district and every judicial
district has at least one newspaper of general circulation so
that's where foreclosures are advertized. That won't change.
This adds the Internet publication, which will level the field
in terms of getting the information to more people in the
particular judicial district. Right now it's perfectly legal to
advertize a foreclosure sale for a property in Anchorage in the
Kodiak newspaper because they're in the same judicial district
even though the information may be of little interest to people
in Kodiak. When it's on the Internet, anyone who is looking will
see it, he said.
2:50:12 PM
MR. FENERTY reported that several Bush newspapers including the
Arctic Sounder and Nome Nugget already put foreclosure notices
on their website whenever they publish a notice in the
newspaper.
CHAIR FRENCH announced he would hold HB 108 in committee.
SB 249-PUBLIC RECORDS/ELECTRONIC TRANSMISSIONS
CHAIR FRENCH announced the consideration of SB 249.
2:51:24 PM
MAX HENSLEY, Staff to Senator Johnny Ellis, sponsor of SB 249,
said the bill strengthens and clarifies existing law regarding
access to and preservation of public records. The sponsor
statement includes a quote from the Organic Act of 1913 that
says that every person has a right to inspect any public record
and every public officer that has custody thereof, is bound to
permit an inspection. SB 249 updates the statute while
maintaining that strong intent.
MR. HENSLEY said the bill makes four major changes. First, it
provides a consistent definition of a public record in the three
places it's specifically mentioned in the statutes - maintenance
of records by state agencies; access to records by the public;
and the criminal statutes for tampering with public records.
Second, the definition is consistently broad and explicitly
includes electronic transmissions within the definition and
explains that impeding the preservation of or access to public
records is a violation of existing criminal law. Third, it
amends the Executive Branch Ethics Act to require public
officers to use state email when taking official action. The
current administration supports this recognizing that items that
don't travel through state systems cannot be maintained as
public records. The final major change limits the fees that the
state can charge for access to public records to the actual cost
to duplicate those records. The actual cost does not include
labor because state employees are already being paid and as such
are part of the state budget. This same definition is used by 14
other states nationwide.
2:54:41 PM
MR. HENSLEY said the previous committee asked for a definition
for "public officer" and for "official action" with respect to
the requirement in Section 2 for public officers to use state
email for official action. Both those terms are defined within
that same section of statute. "Official action" means "advice,
participation or assistance, including a recommendation
decision, approval/disapproval vote, or other similar action,
including inaction, by public officers." "Public officer"
includes the governor, lieutenant governor, department heads or
deputies, division directors or deputies, special assistants,
legislative liaisons, assistants to the governor and lieutenant
governor, board and commission members, comptrollers,
procurement officers, executive directors, and members of the
Board of Trustees and investment officers of the Permanent Fund
Corporation and appointed or elected municipal officers. It
includes the people who might have a direct impact on public
policy, not every state employee.
CHAIR FRENCH asked what the remedy would be if a public officer
under Section 2 does not use a state electronic delivery system
for their electronic transmissions.
MR. HENSLEY said it would be an ethics violation under the
Executive Branch Ethics Act. Section 6 specifies that it's a
criminal violation, but it hasn't been tested.
2:58:15 PM
CHAIR FRENCH announced he would hold SB 249 in committee.
There being no further business to come before the committee,
Chair French adjourned the meeting at 2:58 p.m.
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