02/11/2014 01:00 PM House MILITARY & VETERANS' AFFAIRS

         HB 212-DRIVER'S LICENSING EXEMPTION: MILITARY                                                                      
                                                                                                                                
1:06:31 PM                                                                                                                    
                                                                                                                                
CO-CHAIR LEDOUX announced that the  first order of business would                                                               
be HOUSE  BILL NO.  212, "An  Act relating  to an  exemption from                                                               
driver  licensing  requirements for  spouses  of  members of  the                                                               
armed forces of the United States."                                                                                             
                                                                                                                                
1:06:49 PM                                                                                                                    
                                                                                                                                
The committee took an at-ease from 1:06 p.m. to 1:08 p.m.                                                                       
                                                                                                                                
CO-CHAIR  LEDOUX recalled  that public  testimony on  HB 212  was                                                               
closed at the meeting of 2/4/14.                                                                                                
                                                                                                                                
1:09:04 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE DOUG ISAACSON,  Alaska State Legislature, speaking                                                               
as  a prime  joint  sponsor,  informed the  committee  HB 212  is                                                               
another  way  for Alaska  to  support  military members  who  are                                                               
temporary residents  of the state.   Alaska provides  a [driver's                                                               
license]  benefit   to  military  members  who   wish  to  retain                                                               
residency in their home state, and  the bill is simply asking for                                                               
the same  benefit so a military  member's spouse over the  age of                                                               
18  can retain  his/her  driver's license  issued  by their  home                                                               
state.   To address  a concern expressed  by some,  he emphasized                                                               
that  in the  bill the  meaning of  "spouse" is  the same  as the                                                               
meaning  currently  recognized  by  state  law.    Representative                                                               
Isaacson urged for HB 212 to be passed from committee.                                                                          
                                                                                                                                
1:11:07 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  moved to  adopt [Amendment  1], labeled                                                               
28-LS0861\N.1, Strasbaugh, 2/11/14, which read:                                                                                 
                                                                                                                                
     Page 1, line 1, following "spouses":                                                                                     
          Insert "or same-sex partners"                                                                                       
                                                                                                                                
     Page 2, line 1, following "spouse" in both places:                                                                     
          Insert "or same-sex partner"                                                                                      
                                                                                                                                
     Page 2, line 3:                                                                                                            
          Delete "or spouse"                                                                                                
          Insert "or the member's spouse or same-sex                                                                        
     partner"                                                                                                               
                                                                                                                                
     Page 2, line 4, following "jurisdiction;":                                                                                 
          Insert "to claim to an exemption under this                                                                       
     paragraph, a member's same-sex  partner shall submit an                                                                
     application for an exemption  and, with the application                                                                
     for exemption,  two affidavits,  one from  the same-sex                                                                
     partner  and  one from  the  member,  stating that  the                                                                
     member and the same-sex partner                                                                                        
               (A)  are at least 18 years of age and are                                                                    
     each competent to enter into a contract;                                                                               
               (B)  have been in an exclusive, committed,                                                                   
     and intimate relationship with each  other for the last                                                                
     12  consecutive  months  and intend  to  continue  that                                                                
     relationship indefinitely;                                                                                             
               (C)  have maintained a household together at                                                                 
     a common primary residence for  the last 12 consecutive                                                                
     months  and intend  to  maintain  a household  together                                                                
     indefinitely;                                                                                                          
               (D)  consider themselves to be members of                                                                    
     each other's immediate family;                                                                                         
               (E)  are not related to each other to a                                                                      
       degree of closeness that would preclude them from                                                                    
     marrying each other in this state if they were of the                                                                  
     opposite sex;                                                                                                          
               (F)  are not legally married to another                                                                      
     person;                                                                                                                
               (G)  have not executed an affidavit                                                                          
     affirming same-sex partner status with another person                                                                  
     within the last 12 months;                                                                                             
               (H)  are each other's sole domestic partner                                                                  
     and each is responsible for the welfare of the other;                                                                  
     and                                                                                                                    
               (I)  share financial obligations, including                                                                  
       joint responsibility for basic living expenses and                                                                   
     health care costs;"                                                                                                    
                                                                                                                                
1:11:28 PM                                                                                                                    
                                                                                                                                
CO-CHAIR LEDOUX objected for the purpose of discussion.                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG  explained that the bill  grants a state                                                               
benefit and  therefore is  governed by  the Alaska  Supreme Court                                                               
case Alaska CLU  v. State of Alaska, (ACLU)  decided on 10/28/05.                                                             
Commonly  known  as ACLU,  the  aforementioned  case governs  the                                                               
question of  benefits given to  couples who cannot  legally marry                                                               
in  Alaska  because  of Alaska's  constitutional  amendment  that                                                               
defines  marriage  as  a  union   between  a  man  and  a  woman.                                                               
Furthermore,  there  is  also  a  recent  Alaska  Superior  Court                                                               
decision  and order  in Julie  Schmidt et.  al, v.  The State  of                                                             
Alaska  and  Municipality  of   Anchorage  (Schmidt  case)  dated                                                             
9/19/11,  which has  now been  argued before  the Alaska  Supreme                                                               
Court and  is awaiting decision.   The  holding in both  cases is                                                               
that programs  offering valuable benefits to  employees' spouses,                                                               
and that are not offered  to unmarried domestic partners, violate                                                               
equal   protection   under   the   Alaska   State   Constitution.                                                               
Representative Gruenberg  said he  offered the  amendment because                                                               
of his concern  about the constitutionality of the bill  as it is                                                               
written, as well  as the policy issues involved.   Amendment 1 is                                                               
offered  on behalf  of  those who  believe  the equal  protection                                                               
clause  protects  "in  this  kind  of  a  situation."    He  said                                                               
Amendment 1 was  drafted specifically following the  ACLU case to                                                               
assure the legislation meets the  requirement of the Constitution                                                               
of  the United  States, but  does  not violate  the Alaska  State                                                               
Constitution.   Representative Gruenberg  urged for  the adoption                                                               
of Amendment 1.                                                                                                                 
                                                                                                                                
1:14:41 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HUGHES  referred to previous testimony  given at a                                                               
prior meeting.                                                                                                                  
                                                                                                                                
[No specific reference  was given as to the date  of said meeting                                                               
or the identity of the testifier.]                                                                                              
                                                                                                                                
CO-CHAIR LEDOUX said  she was unsure about  previous testimony on                                                               
this matter as  the amendment was not before  the committee until                                                               
now.                                                                                                                            
                                                                                                                                
CO-CHAIR FOSTER recalled there was testimony from an individual.                                                                
                                                                                                                                
1:16:01 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   HUGHES   said   the   aforementioned   testifier                                                               
indicated there  was a problem,  and remarked, "I just  wanted to                                                               
make it  clear that, so  that we're  all aware, that  that person                                                               
was  representing   themselves  and  was  not   representing  the                                                               
Department of Law."                                                                                                             
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said he  did  not  hear, and  had  not                                                               
reviewed, "that person's testimony."                                                                                            
                                                                                                                                
1:17:17 PM                                                                                                                    
                                                                                                                                
RACHEL  WITTY,  Assistant  Attorney   General,  Labor  and  State                                                               
Affairs Section,  Civil Division (Anchorage), Department  of Law,                                                               
in response to Representative Gruenberg,  said she did not have a                                                               
copy of Amendment  1, but she had reviewed the  bill.  In further                                                               
response to  Representative Gruenberg,  she opined that  the bill                                                               
has a potential constitutional issue  depending on how the Alaska                                                               
Supreme  Court were  to rule  in the  Schmidt case;  however, the                                                               
state  has appealed  the  Alaska Superior  Court  holding on  the                                                               
grounds that the  superior court judge was  incorrect in bringing                                                               
in the 2005 ACLU case  because it dealt with employment benefits.                                                               
The 2005 case  holding made clear that the  decision only applied                                                               
to employment  benefits.   The Schmidt  case dealt  with property                                                               
tax  exemption, and  the state  argued that  married people  hold                                                               
property  differently than  unmarried  people,  whether they  are                                                               
same-sex  couples, relatives,  or others.   The  state asked  the                                                               
state supreme  court to  limit the  superior court's  holding and                                                               
not extend the first ACLU decision to the property tax case.                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG requested  that  Ms.  Witty review  the                                                               
ACLU case:   the facts and  legal reasoning of the  case, and the                                                               
holding of the state supreme court.                                                                                             
                                                                                                                                
1:19:05 PM                                                                                                                    
                                                                                                                                
MS. WITTY  relayed the  first ACLU  case in  2005 was  brought by                                                               
employees  of  the  state  and  the  Municipality  of  Anchorage,                                                               
challenging  "the  spousal  limitation   in  the  state  benefits                                                               
program,"  which did  not  afford them  the  same retirement  and                                                               
health benefits  as the spouses  of state employees.   The Alaska                                                               
Supreme  Court   found  that  because  individuals   in  same-sex                                                               
relationships  could not  get married  due to  the constitutional                                                               
ban  on gay  marriage in  Alaska, there  was an  equal protection                                                               
violation.   As the state was  in a unique position  as employer,                                                               
and  the  employees   were  entitled  to  the   fruits  of  their                                                               
employment, the  state had an  obligation to treat  its employees                                                               
equally and extend the same benefits to same-sex partners.                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  for  the  facts, reasoning,  and                                                               
decision of the superior court judge in the Schmidt case.                                                                       
                                                                                                                                
MS. WITTY said  the Schmidt case involved  challenges by same-sex                                                               
property owners in the Municipality  of Anchorage to the property                                                               
tax exemption  statute giving exemptions  to senior  citizens and                                                               
disabled veterans.  There is also  a provision in the statute for                                                               
widows and  widowers that was  not challenged by  the plaintiffs.                                                               
The plaintiffs argued that they were  not given the full value of                                                               
the  exemption but  were treated  as  roommates, whereas  married                                                               
couples  receive  the  full  exemption  instead  of  half.    The                                                               
superior court  judge held -  applying the ACLU decision  in 2005                                                               
to the  Schmidt case  - that any  time there was  the use  of the                                                               
word  spouse in  a  statute  or regulation,  there  was an  equal                                                               
protection violation.   In response to  Representative Gruenberg,                                                               
Ms.  Witty said  she represented  the state  before the  superior                                                               
court and  assisted with the appeal,  but did not argue  the case                                                               
before the Alaska Supreme Court.                                                                                                
                                                                                                                                
1:22:29 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG asked, "As I  understand it, no court in                                                               
this state has adopted the state's  reasoning on this issue.  The                                                               
only two cases are the cases we have discussed, correct?"                                                                       
                                                                                                                                
1:22:34 PM                                                                                                                    
                                                                                                                                
MS. WITTY was unaware of any  other cases before courts in Alaska                                                               
dealing with this  issue.  In further  response to Representative                                                               
Gruenberg, she  agreed that both  cases are based upon  the state                                                               
constitution and  not the  federal constitution  equal protection                                                               
clause.                                                                                                                         
                                                                                                                                
1:23:01 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HIGGINS  asked  Ms.  Witty  whether  HB  212,  as                                                               
written, legally meets the standards of the state constitution.                                                                 
                                                                                                                                
MS. WITTY  stated that  the bill does  not clearly  violate equal                                                               
protection  under the  ruling  in 2005  as  it currently  stands;                                                               
however,  if the  state  supreme court  "widens  that holding  to                                                               
extend to other  spousal classifications, then there  might be an                                                               
equal protection  issue."  In further  response to Representative                                                               
Higgins, she advised that a "wait  and see approach" would not be                                                               
unreasonable because a  number of laws would need  to be changed,                                                               
perhaps even by regulation.                                                                                                     
                                                                                                                                
1:25:18 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  LEDOUX expressed  her  preference for  a  wait and  see                                                               
approach  due to  the pending  court cases.   She  maintained her                                                               
objection to Amendment 1.                                                                                                       
                                                                                                                                
REPRESENTATIVE  GRUENBERG observed  that  Ms.  Witty limited  her                                                               
answer  to  Representative Higgins  to  the  state supreme  court                                                               
decision in the ACLU case.   He asked for the precedential effect                                                               
that can  be set  by the  decision of the  superior court  in the                                                               
Schmidt case; although  not binding on the  Alaska Supreme Court,                                                               
this decision should be important to the legislature.                                                                           
                                                                                                                                
1:27:31 PM                                                                                                                    
                                                                                                                                
MS. WITTY said:                                                                                                                 
                                                                                                                                
     Although the  judge in the  Schmidt case did  use quite                                                                    
     expansive language to describe  the holding and the use                                                                    
     of the  word spouse, or  widow, and widower,  the facts                                                                    
     of that case  were limited to a  property tax exemption                                                                    
     challenge and whether the state  had a reasonable basis                                                                    
     for the classification  made in that statute.   And so,                                                                    
     I think  with any  statute, you would  have to  look at                                                                    
     the  circumstances  of   that  particular  statute  and                                                                    
     whether  or  not there's  a  reasonable  basis for  the                                                                    
     classification in that statute.                                                                                            
                                                                                                                                
1:28:13 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  LEDOUX  surmised  that  superior court  cases  are  not                                                               
considered  precedent by  the state  supreme court;  in fact,  in                                                               
some  courtrooms, superior  court cases  are not  to be  cited as                                                               
precedent.                                                                                                                      
                                                                                                                                
MS. WITTY affirmed  that superior court cases are  not binding on                                                               
the state supreme court, or on  the legislature, as it is dealing                                                               
with  different  statutes.    In  further  response  to  Co-Chair                                                               
LeDoux, she  agreed the case  is not binding on  another superior                                                               
court, and has no precedential value.                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG  opined that the case  is precedent, but                                                               
is not  binding precedence because  precedence means "there  is a                                                               
holding and reasoning,  that either the court  or the legislature                                                               
may look to ...."                                                                                                               
                                                                                                                                
MS. WITTY  stated it is  not precedential for the  legislature in                                                               
this case.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG inquired  as to  the authority  for Ms.                                                               
Witty's  last statement  because  he had  never  heard whether  a                                                               
superior  court  decision  is,  or  is  not,  precedent  for  the                                                               
legislature  to use.   He  said  he would  research that  matter.                                                               
Returning to  the Schmidt case, Representative  Gruenberg pointed                                                               
out that the Schmidt case was  decided 9/16/11, which is over two                                                               
years ago,  and the case  was argued  in the state  supreme court                                                               
almost one and  one/half years ago.  He asked  when a decision is                                                               
expected.                                                                                                                       
                                                                                                                                
MS. WITTY  was unsure  if there  is a  requirement for  a certain                                                               
date.                                                                                                                           
                                                                                                                                
CO-CHAIR  LEDOUX  suggested  that  if an  opinion  affirming  the                                                               
Schmidt  case   is  issued,  the   bill  could  still   be  under                                                               
consideration in the legislature.                                                                                               
                                                                                                                                
REPRESENTATIVE HUGHES  commented that without  binding precedent,                                                               
and  with  a  pending  court  case, she  would  not  support  the                                                               
amendment.                                                                                                                      
                                                                                                                                
CO-CHAIR FOSTER said  he would support the  amendment because the                                                               
duty of the legislature is to direct good public policy.                                                                        
                                                                                                                                
1:33:36 PM                                                                                                                    
                                                                                                                                
A  roll  call vote  was  taken.   Representatives  Gruenberg  and                                                               
Foster voted in  favor of Amendment 1.   Representatives Higgins,                                                               
Hughes,  and LeDoux  voted against  it.   Therefore, Amendment  1                                                               
failed by a vote of 2-3.                                                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said he  supports  the  bill; it  just                                                               
happened to  be a piece  of legislation that presented  the issue                                                               
he addressed in the proposed amendment.                                                                                         
                                                                                                                                
CO-CHAIR FOSTER stated his support for the bill.                                                                                
                                                                                                                                
1:35:43 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  FOSTER moved  to report  HB 212  out of  committee with                                                               
individual  recommendations and  the  accompanying fiscal  notes.                                                               
Without  objection,  HB 212  was  moved  from the  House  Special                                                               
Committee on Military and Veterans' Affairs.