Legislature(2011 - 2012)CAPITOL 120
04/01/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB179 | |
| HB88 | |
| HB1 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 1 | TELECONFERENCED | |
| *+ | HB 179 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 88 | TELECONFERENCED | |
HB 88 - USE OF FOREIGN LAW
1:44:52 PM
CHAIR GATTO announced that the next order of business would be
HOUSE BILL NO. 88, "An Act prohibiting a court, arbitrator,
mediator, administrative agency, or enforcement authority from
applying a law, rule, or provision of an agreement that violates
an individual's right under the Constitution of the State of
Alaska or the United States Constitution." [Before the
committee was CSHB 88(STA); adopted as the working document on
3/30/11 was the proposed committee substitute (CS) for HB 88,
Version 27-LS0333\D, Bailey, 3/30/11.]
The committee took an at-ease from 1:45 p.m. to 1:48 p.m.
1:49:12 PM
REPRESENTATIVE KELLER made a motion to adopt [a written]
Conceptual Amendment 1, which [although incorrect with regard to
placement and text] read [original punctuation provided]:
Page2, line 28
(g) In this section, "foreign law" means a law, rule,
or legal code or system established and used or
applied in a jurisdiction outside of the United States
and the territories of the United States. "Foreign
law" does not mean nor shall it include a law
currently established in Alaska statute, or Case Law.
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
REPRESENTATIVE KELLER indicated his belief that Conceptual
Amendment 1 would serve as a grandfather clause, thereby
addressing concerns raised during the bill's last hearing that
HB 88's prohibition of foreign law could mistakenly be applied
in situations involving Catholic canon law, for example.
REPRESENTATIVE GRUENBERG, citing his nescience regarding all of
Conceptual Amendment 1's possible implications, expressed
concern that its adoption may have some significant
ramifications.
The committee took an at-ease from 1:53 p.m. to 1:57 p.m.
CHAIR GATTO clarified that Conceptual Amendment 1 is proposing
to add to page 3, line 1, of Version D - after the words,
"territories of the United States." - the words:
"Foreign law" does not mean nor shall it include a law
currently established in Alaska statute, or Case Law.
REPRESENTATIVE KELLER concurred, and offered his understanding
that via either statute or case law, Catholic canon law is
currently being applied by the courts.
2:00:48 PM
MARY ELLEN BEARDSLEY, Assistant Attorney General,
Commercial/Fair Business Section, Civil Division (Anchorage),
Department of Law (DOL), in response to a question, relaying
that she would prefer to have a little more time to research the
issue, characterized Conceptual Amendment 1 as extremely broad,
and expressed concern that its ending word, "Law" could
encompass a lot of things.
2:01:42 PM
PETER PUTZIER, Senior Assistant Attorney General, Opinions,
Appeals, & Ethics, Civil Division (Anchorage), Department of Law
(DOL), on the issue of tribal law, explained that in suggesting
the wording [currently in Version D's legislative intent section
and proposed AS 11.61.140(g)] regarding HB 88's inapplicability
to tribal law and its definition of the term, "foreign law",
respectively, his assumptions were that tribal law was not the
focus of the bill, and, even if it were the focus, that the
legislature doesn't have any authority to restrict the inherent
authority of tribes. Specifically, because the term "foreign
law" is being defined in the bill as being a law outside the
jurisdiction of the United States and its territories, then
including language stating that foreign law does not mean nor
include tribal law is unnecessary given that federally-
recognized tribes - and certainly the tribes in the state of
Alaska - are within the jurisdiction of the United States. And
to clarify that point further, Version D now includes a
legislative intent section that reads:
LEGISLATIVE INTENT. It is the intent of the
legislature that AS 09.68.140, enacted by sec. 3 of
this Act, does not address, directly or indirectly,
any question of tribal law or the application of
tribal law or otherwise address the intersection
between state law and tribal law.
2:05:05 PM
KAREN SAWYER, Staff, Representative Carl Gatto, Alaska State
Legislature, on behalf of the sponsor, Representative Gatto, in
response to a question, concurred that Version D does
incorporate Mr. Putzier's suggested wording.
MR. PUTZIER, in response to a question, offered his belief that
including the aforementioned legislative intent section would be
sufficient, and that tribal law is not, in any event, implicated
under the term, "foreign law" as defined in the bill. In
response to another question, he said he tends to agree with Ms.
Beardsley that Conceptual Amendment 1 is potentially
complicated. He said he questions, for example, whether its
proposed exclusion - [although perhaps intended to address] the
application of Catholic canon law - also includes regulations
or, given that it specifies only Alaska's statutes, laws from
other states. He opined that Conceptual Amendment 1 ought to be
scrutinized further to ensure that it hasn't any unintended
consequences. In response to a further question, he said he'd
have to do more research regarding the underlying concern about
the application of Catholic canon law before being able to speak
to whether Conceptual Amendment 1 would adequately address that
concern.
REPRESENTATIVE HOLMES surmised that because Catholic canon law
isn't - to the best of her knowledge - contained in Alaska's
statutes or case law, that Conceptual Amendment 1 wouldn't
really accomplish the stated goal.
REPRESENTATIVE KELLER, concurring with that point and
acknowledging that Conceptual Amendment 1 is broader than he had
in mind, withdrew Conceptual Amendment 1.
REPRESENTATIVE GRUENBERG offered an example of a horrendous
spousal-rape-and-subsequent-divorce case he was involved with
many years ago that was ultimately settled but in which had the
courts allowed for the application of Jewish law, a terrific
injustice could have resulted, and pointed out that conflict of
laws constitutes a very complex body of law, one derived solely
from judicial rulings, upon which a bill such as HB 88 would
have a [huge] effect.
2:17:54 PM
MS. SAWYER indicated that Janet Levy - who spoke during HB 88's
last hearing - relayed in an e-mail that her attorneys assert
that the [U.S. Supreme Court] has made it clear that under the
First Amendment, intra-church/mosque/synagogue disputes remain
internal unless neutral principles of law can be applied.
CHAIR GATTO offered his belief that HB 88 is meant to address
conflicts between religious law and secular law.
MS. SAWYER pointed out, however, that HB 88 only addresses civil
law, not religious law, though she acknowledged that in some
foreign jurisdictions, civil law is associated/intertwined with
religious law.
REPRESENTATIVE GRUENBERG indicated a belief that how the courts
address [various potentially-conflicting laws] is too complex to
be laid out in statute because all such cases are fact driven,
and that to attempt to do so would be Procrustean in nature.
The principles, whether they be equitable principles or choice-
of-law principles or contractual principles, are all designed to
make the legal system work in instances involving private
disputes.
REPRESENTATIVE KELLER offered his belief that the bill merely
states a legislative preference that the courts not use a law
that isn't derived from the constitutions.
REPRESENTATIVE LYNN disclosed that he is a practicing Catholic,
and relayed that he intends to vote "yes" on HB 88.
REPRESENTATIVE HOLMES, after mentioning that she agrees with
many of Representative Gruenberg's comments, expressed concern
that from the discussion she's heard thus far, the committee
appears to be trying to protect certain types of religious law
while outlawing other types of religious law - specifically,
trying to protect Catholic canon law and Jewish law while
outlawing Shari'a law. For her, she relayed, this raises legal
questions - for example, how would one draw that line - as well
as ethical and moral concerns. Furthermore, as previously
mentioned, the bill is addressing a very complex area of law and
will therefore have huge consequences for international business
and for Alaska's reputation as a welcoming business venue, and
will complicate contractual choice-of-law decisions for
individuals. Extensive research illustrates that even when the
issue of shari'a is raised in court, judges are already refusing
to apply it, stating that in this country, this country's laws
and constitution apply. Therefore, by attempting to protect
against something that isn't actually happening in the courts, a
whole host of problems regarding conflict of laws and
international business will instead be created. For these
reasons, she relayed, she would be voting against HB 88.
CHAIR GATTO, citing England as an example, argued that judges
don't always make correct decisions, and offered his belief that
even incorrect judicial rulings can create legal precedence.
2:27:19 PM
REPRESENTATIVE THOMPSON referred to the DOL's March 21, 2011,
legal opinion included in members' packets - specifically to the
portion that read, "HB 88 might affect a foreign entity's
willingness to do business with individuals or businesses in
Alaska if it knows that provisions of the contract may be void
by law should HB 88 become law" - and expressed concern that the
bill would hurt Alaskans economically when they attempt to
conduct business with entities outside of Alaska. He indicated
a desire, though, to ensure that foreign laws aren't being
applied in Alaska.
CHAIR GATTO offered his belief that it's rare for an individual
to enter into a contract with a foreign entity.
REPRESENTATIVE HOLMES explained that that's not the case;
instead, contracts between individuals and foreign entities are
used in a lot of situations, such as those pertaining to
employment, travel, the purchase of goods and services,
warrantees, and many other, everyday-type situations that most
people don't think of as involving a contract.
REPRESENTATIVE PRUITT observed that Article. VI. of the U.S.
Constitution says in part:
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary Notwithstanding.
REPRESENTATIVE PRUITT, referring to the aforementioned legal
opinion, indicated concern that HB 88 would have unintended
consequences, and suggested that the issues raised thus far be
researched further to ensure that business and economic
opportunities for Alaskans won't be endangered by the bill.
REPRESENTATIVE KELLER acknowledged that conflict of laws appears
to be a very complicated area of the law, and observed that
HB 88 doesn't ban consideration of foreign law, merely the
application of foreign law.
MS. SAWYER, in response to Representative Thompson, explained
that to address the concern expressed in the aforementioned
legal opinion, language was added in the House State Affairs
Standing Committee providing an exemption for corporations,
partnerships, and other forms of business association. In
conclusion, she offered her understanding that there is a
shari'a court operating in Texas.
2:35:06 PM
REPRESENTATIVE KELLER moved to report the proposed committee
substitute (CS) for HB 88, Version 27-LS0333\D, Bailey, 3/30/11,
out of committee with individual recommendations and the
accompanying fiscal notes.
CHAIR GATTO said there was an objection to the motion.
A roll call vote was taken. Representatives Thompson,
Gruenberg, Lynn, Keller, Pruitt, and Gatto voted in favor of
reporting the bill from committee. Representative Holmes voted
against it. Therefore, CSHB 88(JUD) was reported from the House
Judiciary Standing Committee by a vote of 6-1.