Legislature(1997 - 1998)

04/30/1998 01:25 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         HOUSE JUDICIARY STANDING COMMITTEE                                    
                   April 30, 1998                                              
                     1:25 p.m.                                                 
                                                                               
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Representative Joe Green, Chairman                                             
Representative Con Bunde, Vice Chairman                                        
Representative Brian Porter                                                    
Representative Norman Rokeberg                                                 
Representative Jeannette James                                                 
Representative Eric Croft                                                      
Representative Ethan Berkowitz                                                 
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
All members present                                                            
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
CS FOR SENATE BILL NO. 234(FIN)                                                
"An Act extending the termination date of the Board of Governors of            
the Alaska Bar Association."                                                   
                                                                               
     - MOVED HCS CSSB 234(JUD) OUT OF COMMITTEE                                
                                                                               
CS FOR SENATE BILL NO. 218(FIN)                                                
"An Act relating to the crimes of murder, manslaughter, and                    
criminally negligent homicide; relating to homicides of children;              
and relating to the crime of interference with custody of a child              
or incompetent person."                                                        
                                                                               
     - MOVED HCS CSSB 218(JUD) OUT OF COMMITTEE                                
                                                                               
CONFIRMATION HEARINGS:                                                         
                                                                               
Violent Crimes Compensation Board                                              
                                                                               
     Carol L. Alley, M.D.                                                      
                                                                               
     - CONFIRMATION ADVANCED                                                   
                                                                               
Commission on Judicial Conduct                                                 
                                                                               
     Mary Matthews                                                             
     Jeffrey M. Feldman, Esq.                                                  
                                                                               
     - CONFIRMATIONS ADVANCED                                                  
                                                                               
CS FOR SENATE BILL NO. 304(RLS)                                                
"An Act relating to the bail or fine for an offense committed in a             
highway work zone; and providing for an effective date."                       
                                                                               
     - MOVED CSSB 304(RLS) OUT OF COMMITTEE                                    
                                                                               
HOUSE BILL NO. 196                                                             
"An Act relating to wills, intestacy, nonprobate transfers, and                
trusts; and amending Rule 24, Alaska Rules of Civil Procedure."                
                                                                               
     - HEARD AND HELD                                                          
                                                                               
(* First public hearing)                                                       
                                                                               
PREVIOUS ACTION                                                                
                                                                               
BILL: SB 234                                                                   
SHORT TITLE: BOARD OF GOVERNORS OF AK BAR ASSN                                 
SPONSOR(S): LABOR & COMMERCE                                                   
                                                                               
Jrn-Date    Jrn-Page           Action                                          
 1/14/98      2193     (S)  READ THE FIRST TIME - REFERRAL(S)                  
 1/14/98      2194     (S)  JUD, FIN                                           
 1/21/98               (S)  JUD AT  1:30 PM BELTZ ROOM 211                     
 1/21/98               (S)  MINUTE(JUD)                                        
 1/22/98      2260     (S)  JUD RPT  4DP                                       
 1/22/98      2260     (S)  DP: TAYLOR, ELLIS, MILLER, PEARCE                  
 1/22/98      2260     (S)  FISCAL INFORMATION FORTHCOMING                     
 2/11/98               (S)  FIN AT  8:30 AM SENATE FINANCE 532                 
 2/24/98               (S)  FIN AT  8:30 AM SENATE FINANCE 532                 
 2/26/98               (S)  FIN AT  8:30 AM SENATE FINANCE 532                 
 3/26/98               (S)  FIN AT  3:30 PM BUTROVICH RM 205                   
 3/31/98               (S)  FIN AT  9:00 AM SENATE FINANCE 532                 
 4/01/98               (S)  FIN AT  9:00 AM SENATE FINANCE 532                 
 4/02/98      3110     (S)  FIN RPT  CS  7DP           SAME TITLE              
 4/02/98      3110     (S)  DP: SHARP, PEARCE, PHILLIPS, PARNELL,              
 4/02/98      3110     (S)  ADAMS, TORGERSON, DONLEY                           
 4/02/98      3111     (S)  ZERO FISCAL NOTE TO SB & CS (COURT)                
 4/03/98               (S)  RLS AT 12:00 PM FAHRENKAMP RM 203                  
 4/03/98               (S)  MINUTE(RLS)                                        
 4/06/98      3159     (S)  RULES TO CALENDAR  4/6/98                          
 4/06/98      3162     (S)  READ THE SECOND TIME                               
 4/06/98      3162     (S)  FIN  CS ADOPTED Y13 N6 E1                          
 4/06/98      3162     (S)  ADVANCED TO THIRD READING UNAN                     
                            CONSENT                                            
 4/06/98      3162     (S)  READ THE THIRD TIME  CSSB 234(FIN)                 
 4/06/98      3163     (S)  PASSED Y19 N- E1                                   
 4/06/98      3167     (S)  TRANSMITTED TO (H)                                 
 4/07/98      2898     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 4/07/98      2898     (H)  JUDICIARY                                          
 4/30/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
                                                                               
BILL: SB 218                                                                   
SHORT TITLE: CRIMES OF MURDER & CHILD MURDERS                                  
SPONSOR(S): SENATOR(S) HALFORD, Green, Donley, Taylor, Leman,                  
Duncan, Lincoln, Parnell, Kelly, Pearce, Sharp, Miller                         
                                                                               
Jrn-Date    Jrn-Page           Action                                          
 1/12/98      2167     (S)  PREFILE RELEASED 1/9/98                            
 1/12/98      2167     (S)  READ THE FIRST TIME - REFERRAL(S)                  
 1/12/98      2167     (S)  JUD, FIN                                           
 2/04/98               (S)  JUD AT  1:30 PM BELTZ ROOM 211                     
 2/09/98               (S)  JUD AT  1:30 PM BELTZ ROOM 211                     
 2/09/98               (S)  MINUTE(JUD)                                        
 2/11/98               (S)  JUD AT  2:00 PM BELTZ ROOM 211                     
 2/12/98      2495     (S)  JUD RPT  CS  3DP          NEW TITLE                
 2/12/98      2495     (S)  DP:  TAYLOR, MILLER, PEARCE                        
 2/12/98      2495     (S)  INDETERMINATE FN TO SB & CS (ADM)                  
 2/12/98      2495     (S)  ZERO FN TO SB & CS (COR, LAW)                      
 3/31/98               (S)  FIN AT  9:00 AM SENATE FINANCE 532                 
 4/02/98      3110     (S)  FIN RPT  CS  7DP          NEW TITLE                
 4/02/98      3110     (S)  DP: PEARCE, SHARP, PHILLIPS, PARNELL,              
 4/02/98      3110     (S)  ADAMS, DONLEY, TORGERSON                           
 4/02/98      3110     (S)  PREVIOUS INDETERMINATE FN (ADM)                    
 4/02/98      3110     (S)  PREVIOUS ZERO FNS (LAW, COR)                       
 4/03/98               (S)  RLS AT 12:00 PM FAHRENKAMP RM 203                  
 4/03/98               (S)  MINUTE(RLS)                                        
 4/06/98      3159     (S)  RULES TO CALENDAR  4/6/98                          
 4/06/98      3160     (S)  READ THE SECOND TIME                               
 4/06/98      3161     (S)  FIN  CS ADOPTED UNAN CONSENT                       
 4/06/98      3161     (S)  COSPONSOR(S): DUNCAN, LINCOLN,                     
                            PARNELL                                            
 4/06/98      3161     (S)  KELLY, PEARCE, SHARP, MILLER                       
 4/06/98      3161     (S)  ADVANCED TO THIRD READING UNAN                     
                            CONSENT                                            
 4/06/98      3161     (S)  READ THE THIRD TIME  CSSB 218(FIN)                 
 4/06/98      3161     (S)  PASSED Y19 N- E1                                   
 4/06/98      3166     (S)  TRANSMITTED TO (H)                                 
 4/07/98      2897     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 4/07/98      2898     (H)  JUDICIARY, FINANCE                                 
 4/30/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
                                                                               
BILL: SB 304                                                                   
SHORT TITLE: REGULATION OF MOTOR VEHICLES & HWYS                               
SPONSOR(S): SENATOR(S) DONLEY, Wilken, Taylor, Duncan, Kelly,                  
Pearce                                                                         
                                                                               
Jrn-Date    Jrn-Page           Action                                          
 2/16/98      2524     (S)  READ THE FIRST TIME - REFERRAL(S)                  
 2/16/98      2524     (S)  TRA, JUD                                           
 2/24/98               (S)  TRA AT  1:30 PM BUTROVICH ROOM 205                 
 2/24/98               (S)  MINUTE(TRA)                                        
 3/12/98               (S)  TRA AT  1:30 PM BUTROVICH ROOM 205                 
 3/12/98               (S)  MINUTE(TRA)                                        
 3/19/98               (S)  TRA AT  1:30 PM BUTROVICH ROOM 205                 
 3/19/98               (S)  MINUTE(TRA)                                        
 3/20/98      2916     (S)  TRA RPT  CS  1DP 3NR      SAME TITLE               
 3/20/98      2916     (S)  DP: WARD   NR: WILKEN, HALFORD, GREEN              
 3/20/98      2916     (S)  ZERO FISCAL NOTE TO SB & CS (DOT)                  
 3/25/98               (S)  JUD AT  1:30 PM BELTZ ROOM 211                     
 3/25/98               (S)  MINUTE(JUD)                                        
 3/26/98      3006     (S)  JUD RPT  1DP 3NR (TRA)CS                           
 3/26/98      3006     (S)  DP: TAYLOR; NR: PARNELL, MILLER,                   
                            PEARCE                                             
 3/26/98      3006     (S)  PREVIOUS ZERO FN (DOT)                             
 3/30/98               (S)  RLS AT  4:00 PM FAHRENKAMP RM 203                  
 3/30/98               (S)  MINUTE(RLS)                                        
 4/01/98               (S)  RLS AT 12:10 PM FAHRENKAMP RM 203                  
 4/01/98               (S)  MINUTE(RLS)                                        
 4/03/98               (S)  RLS AT 12:00 PM FAHRENKAMP RM 203                  
 4/03/98               (S)  MINUTE(RLS)                                        
 4/06/98      3159     (S)  RLS TO CALENDAR  CS NEW TITLE 4/6/98               
 4/06/98      3159     (S)  PREVIOUS ZERO FN APPLIES (DOT)                     
 4/06/98      3163     (S)  READ THE SECOND TIME                               
 4/06/98      3163     (S)  RLS  CS ADOPTED UNAN CONSENT                       
 4/06/98      3163     (S)  ADVANCED TO THIRD READING UNAN                     
                            CONSENT                                            
 4/06/98      3163     (S)  READ THE THIRD TIME  CSSB 304(RLS)                 
 4/06/98      3163     (S)  COSPONSOR(S): WILKEN, TAYLOR, DUNCAN               
 4/06/98      3163     (S)  KELLY, PEARCE                                      
 4/06/98      3164     (S)  PASSED Y19 N- E1                                   
 4/06/98      3164     (S)  EFFECTIVE DATE(S) SAME AS PASSAGE                  
 4/06/98      3167     (S)  TRANSMITTED TO (H)                                 
 4/07/98      2898     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 4/07/98      2898     (H)  TRANSPORTATION, JUDICIARY                          
 4/15/98               (H)  TRA AT  1:00 PM CAPITOL 17                         
 4/15/98               (H)  MINUTE(TRA)                                        
 4/16/98      3013     (H)  TRA RPT  7DP                                       
 4/16/98      3013     (H)  DP: HUDSON, ELTON, KOOKESH, SANDERS,               
 4/16/98      3013     (H)  COWDERY, MASEK, WILLIAMS                           
 4/16/98      3013     (H)  SENATE ZERO FISCAL NOTE (DOT) 3/20/98              
 4/30/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
                                                                               
BILL: HB 196                                                                   
SHORT TITLE: WILLS, TRUSTS, & OTHER TRANSFERS                                  
SPONSOR(S): REPRESENTATIVES(S) RYAN, Therriault                                
                                                                               
Jrn-Date    Jrn-Page           Action                                          
 3/14/97       667     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 3/14/97       667     (H)  JUDICIARY, FINANCE                                 
 4/23/97               (H)  JUD AT  1:00 PM CAPITOL 120                        
 4/23/97               (H)  MINUTE(JUD)                                        
 3/06/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/06/98               (H)  MINUTE(JUD)                                        
                                                                               
WITNESS REGISTER                                                               
                                                                               
BRETT HUBER, Legislative Assistant                                             
  to Senator Rick Halford                                                      
Alaska State Legislature                                                       
Capitol Building, Room 121                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-4958                                                     
POSITION STATEMENT:  Presented CSSB 218(FIN) on behalf of Senator              
                     Halford.                                                  
                                                                               
KEVIN JARDELL, Legislative Administrative Assistant                            
  to Representative Joe Green                                                  
Alaska State Legislature                                                       
Capitol Building, Room 118                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-4990                                                     
POSITION STATEMENT:  Answered questions regarding the proposed                 
                     HCS CSSB 218(JUD).                                        
                                                                               
DEAN GUANELI, Chief Assistant Attorney General                                 
Legal Services Section - Juneau                                                
Criminal Division                                                              
Department of Law                                                              
P.O. Box 110300                                                                
Juneau, Alaska 99811-0300                                                      
Telephone:  (907) 465-3428                                                     
POSITION STATEMENT:  Answered questions regarding the proposed                 
                     HCS CSSB 218(JUD).                                        
                                                                               
JAMES ARMSTRONG, Legislative Assistant                                         
  to Senator Dave Donley                                                       
Alaska State Legislature                                                       
Capitol Building, Room 508                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-3892                                                     
POSITION STATEMENT:  Presented CSSB 304(RLS) on behalf of Senator              
                     Dave Donley.                                              
                                                                               
DAVE PREE, Legislative Assistant                                               
  to Representative Joe Ryan                                                   
Alaska State Legislature                                                       
Capitol Building, Room 420                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-3875                                                     
POSITION STATEMENT:  Presented proposed committee substitute for               
                     HB 196 on behalf of Representative Joe Ryan.              
                                                                               
STEVE NOEY                                                                     
TITLE AND AFFILIATION UNKNOWN                                                  
POSITION STATEMENT:  Commented on proposed committee substitute for            
                    HB 196.                                                    
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-78, SIDE A                                                             
Number 0001                                                                    
                                                                               
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee               
meeting to order at 1:25 p.m.  Members present at the call to order            
were Representatives Green, Bunde, Porter and James.                           
Representative Berkowitz arrived at 1:26 p.m., Representative                  
Rokeberg arrived at 1:33 p.m. and Representative Croft arrived at              
1:40 p.m.                                                                      
                                                                               
CSSB 234(FIN) - BOARD OF GOVERNORS OF AK BAR ASSN                              
                                                                               
Number 0025                                                                    
                                                                               
CHAIRMAN GREEN announced the first order of business would be CSSB
234(FIN), "An Act extending the termination date of the Board of               
Governors of the Alaska Bar Association," sponsored by the Senate              
Labor and Commerce Committee.  He noted the board would be extended            
to the year 2000.                                                              
                                                                               
Number 0039                                                                    
                                                                               
REPRESENTATIVE BRIAN PORTER made a motion to amend page 1, line 6,             
delete "2000" and insert "2002".                                               
                                                                               
REPRESENTATIVE ETHAN BERKOWITZ objected.                                       
                                                                               
CHAIRMAN GREEN stated the amendment would extend the board from                
2000 to 2002.                                                                  
                                                                               
REPRESENTATIVE BERKOWITZ removed his objection.                                
                                                                               
CHAIRMAN GREEN announced Amendment 1 was adopted.                              
                                                                               
Number 0145                                                                    
                                                                               
REPRESENTATIVE JEANNETTE JAMES made a motion to move                           
HCS CSSB 234(JUD) out of committee with individual recommendations             
and with the attached zero fiscal note.                                        
                                                                               
REPRESENTATIVE BERKOWITZ objected for the purpose of discussion.               
He indicated he was going to offer some amendments.  He informed               
the committee he is a member of the Alaska Bar Association and it              
is very expensive.  He said, "The last survey that I know that the             
[Alaska] Bar [Association] made regarding its membership was                   
'90/'91.  It is time to survey the membership again.  The [Alaska]             
Bar [Association's] dues are among the most expensive in the state.            
The Bar examination is among the most expensive in the country and             
I don't - as a sole practitioner, I don't know exactly what I'm                
getting for my money.  I also take a little bit of offense to the              
fact that as a sole practitioner, my income stream is not as                   
guaranteed as say someone working for a large firm or working for              
the government.  And so if I opt to pay my [Alaska] Bar                        
[Association] dues in two increments, I have to pay a penalty for              
that.  Now that seems to be unfair.  People who need to pay in two             
increments probably are doing so out of reasons of poverty or cash             
flow and to penalize them for that condition is really unjust.  And            
I've spoken with the [Alaska] Bar Association on this and they have            
rationalizations for it, but it would seem appropriate for the                 
[Alaska] Bar [Association] to develop some kind of way of allowing             
graduated fees for its members.  It has more than $1 million in                
back trusts which seems to me should be used in some way to offset             
these or at least offset the cost of the [Alaska] Bar [Association]            
examination.  And I would just encourage the [Alaska] Bar                      
[Association] to use this opportunity to put out a survey so we are            
clear here in the legislature what it is the [Alaska] Bar                      
[Association] membership thinks the [Alaska] Bar [Association]                 
ought to be doing and ensure that the [Alaska] Bar [Association] is            
not overcharging.                                                              
                                                                               
Number 0294                                                                    
                                                                               
REPRESENTATIVE CON BUNDE said he thinks there should be a                      
resolution that indicates that the Alaska Bar Association is                   
definitely overcharging Mr. Obermeyer and they should stop stealing            
his money if they can't provide any service for him.                           
                                                                               
REPRESENTATIVE JAMES stated she understands the concern of                     
Representative Berkowitz and said she believes he should take it up            
with the Board of Governors of the Alaska Bar Association.                     
                                                                               
CHAIRMAN GREEN stated he thinks there is probably significant                  
support for Representative Berkowitz's position.                               
                                                                               
REPRESENTATIVE BERKOWITZ responded, "There is and occasionally, Mr.            
Chair, you get to use a 'bully pulpit,' so the Board of Governor               
pays more attention and I think they'd probably pay more  attention            
with my title wrap than they would with the little 'J.D.' after my             
name.  So I'm going to use this 'bully pulpit' to make that point."            
                                                                               
REPRESENTATIVE JAMES said since she has been in the state, she has             
observed the number of attorneys and she doesn't believe there is              
a shortage.  She said she thinks they also seem to be doing pretty             
well.  Representative James said she doesn't know that she is so               
sympathetic.                                                                   
                                                                               
REPRESENTATIVE BERKOWITZ informed the committee there is a wide                
range in remuneration for attorneys.  He said the last statistics              
he saw showed the average salary that an attorney makes is                     
somewhere in the $40,000 range.  Not all lawyers strike it rich and            
it is not the business to go into if you want to make money.                   
That's particularly true of lawyers in the public service and                  
lawyers who are doing public interest law.  He indicated he has to             
pay $450 a year regardless if he practices law or not.  The                    
alternative is go on inactive status which means if he wants to                
become active again, he has to retake the Alaska Bar examination               
which is not an experience he ever wants to repeat again.                      
                                                                               
REPRESENTATIVE JAMES pointed out that $450 is less than she has to             
pay to be a member of her rotary club.                                         
                                                                               
VICE CHAIRMAN BUNDE asked if there were objections to moving                   
HCS CSSB 234.  There being none, HCS CSSB 234(JUD) moved out of the            
House Judiciary Standing Committee.                                            
                                                                               
CSSB 218(FIN) - CRIMES OF MURDER & CHILD MURDERS                               
                                                                               
Number 0519                                                                    
                                                                               
VICE CHAIRMAN BUNDE announced the committee would hear                         
CSSB 218(FIN), "An Act relating to the crimes of murder,                       
manslaughter, and criminally negligent homicide; relating to                   
homicides of children; and relating to the crime of interference               
with custody of a child or incompetent person," sponsored by                   
Senator Halford.                                                               
                                                                               
Number 0550                                                                    
                                                                               
BRETT HUBER, Legislative Assistant to Senator Rick Halford, Alaska             
State Legislature, came before the committee to explain                        
CSSB 218(FIN).  He stated the death of a child is always among the             
gravest of situations under any circumstance.  When a child's death            
results from the commission of a crime, the consequences should be             
certain and the punishment should be severe.  Mr. Huber explained              
that Senator Halford introduced the legislation to give law                    
enforcement, prosecutors and the courts additional tools to address            
crime involving the murder of children.                                        
                                                                               
MR. HUBER informed the committee that CSSB 218(FIN) amends the                 
current law by adding a new form of first degree murder when the               
death of a child results from the commission or attempted                      
commission of kidnaping or a sexual offense.  It expands the list              
of offenses constituting felony murders and includes sexual abuse              
of a minor in the first and second degree.  It also elevates                   
criminally negligent homicide from a Class C to a Class B felony.              
It establishes a 20-year mandatory minimum sentence for a person               
convicted of a murder of a child under the age of 16.  It increases            
the mandatory minimum sentence from five to seven years for                    
manslaughter when the victim is a child under the age of 16.  The              
legislation also establishes a new sentencing provision, which                 
allows for a term of unsuspended imprisonment that exceeds the                 
presumptive term for certain felony offenses if the victim is a                
child under the age of 16.  Mr. Huber explained the bill would also            
establish the crime of custodial interference in the first degree              
if a person violates AS 11.41.330 and causes a child or incompetent            
person to be removed or kept outside the state.  He explained that             
children are society's most vulnerable members and they deserve the            
most responsible level of care when entrusted to an adult.                     
                                                                               
MR. HUBER explained the bill is intended to establish a level of               
punishment that's more commensurate with the severity of the crime             
and send a clear message of deterrence.  If a criminal act results             
in the death of a child, you're going to go to jail for a very long            
time.  He stated the Alaska Peace Officer's Association and Victims            
for Justice endorses the legislation.                                          
                                                                               
Number 0680                                                                    
                                                                               
VICE CHAIRMAN BUNDE explained the committee also worked on HB 375              
which addresses elevating the charge in the murdering of a child.              
He asked if the bills are complementary or contradicting in any                
way.                                                                           
                                                                               
MR. HUBER informed the committee stated HB 375, as well as the                 
Senate's companion measure, do include some of the provisions of               
this bill.  The companion measure in the Senate moved out of the               
Senate Health, Education and Social Services (HESS) Committee  the             
previous day.  The provisions of the Senate's companion bill that              
were duplicative of CSSB 218(FIN) were removed.  He noted he                   
doesn't see a problem with the provisions being contained in both              
vehicles.                                                                      
                                                                               
VICE CHAIRMAN BUNDE asked, "Is it the intent that if a child is                
killed in an automobile accident and the charge of manslaughter                
[is] brought that -- I guess in my mind, sometimes they use                    
manslaughter when they would like to do murder, but there isn't                
quite the evidence.  But in other cases, it truly is a case where              
the charge of murder isn't warranted and I was just wondering if               
all the cases of manslaughter would then be elevated?  Is that the             
intent?"                                                                       
                                                                               
MR. HUBER said referred to page 4, subsection (A) and said it has              
the 5-year sentence for other cases of manslaughter and then (B)               
offers, "for manslaughter and the victim is a child under the age              
of 16, 7 years.  So it only elevates 5 to 7 years in the case of               
the victim is a child under the age of 7.                                      
                                                                               
Number 0804                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said, "I have the same recollection of                
what we talked about in [HB] 375 is that we modified the definition            
of 'manslaughter' for the elevated penalties is to ensure that                 
manslaughter with elevated penalties only apply to the crime.  I               
believe it -- Kevin might have the wording and if I could ask him              
to say what it was."                                                           
                                                                               
KEVIN JARDELL, Legislative Administrative Assistant to                         
Representative Joe Green, came before the committee.  He referred              
to "manslaughter," and said the language adopted in HB 375 stated              
that for manslaughter and the conduct resulting in a conviction was            
knowingly directed toward a child under the age of 16 would be 7               
years.                                                                         
                                                                               
VICE CHAIRMAN BUNDE said, "And then my question about an automobile            
crash - obviously in that case, I wouldn't be knowingly directed               
against the child."                                                            
                                                                               
MR. JARDELL said if his recollection is correct, that was the                  
debate - to have some causal connection to the child's age.                    
                                                                               
VICE CHAIRMAN BUNDE asked if that definition of manslaughter would             
be applicable to CSSB 218 or does it need to be redefined to                   
maintain consistency with HB 375.                                              
                                                                               
MR. JARDELL said if the manslaughter provision is kept the way it              
is in CSSB 218, then it would encompass all the situations in HB
375.  It wouldn't necessarily be inconsistent, but it would take a             
lot of cases that HB 375 would exclude and include them.                       
                                                                               
Number 0935                                                                    
                                                                               
VICE CHAIRMAN BUNDE said he would like to propose a conceptual                 
amendment.  He said, "To try to keep this consistent with [HB] 375             
so that manslaughter is knowingly.   And then I would ask Mr. Huber            
to comment on that proposed amendment."                                        
                                                                               
MR. HUBER said, "I can only think of a few concerns, the first                 
concern being, of course, we're late in the session now.  The bill             
has not yet been amended in this body - would require a                        
concurrence.  I think that would be the first concern.  And it's my            
understanding that there is certainly a degree of prosecutorial                
discretion of what level of charges brought depended on the                    
circumstances of the incident that took place.  I think between                
first and second degree murder and then manslaughter and criminally            
negligent homicide there is an opportunity for both the officers               
and the prosecutors involved to use some discretion on what charges            
are involved."                                                                 
                                                                               
REPRESENTATIVE BERKOWITZ said there is always discretion of which              
charge you can bring, but if you opt for a manslaughter charge,                
there is no discretion and you have a victim under 16.  You're                 
either in the manslaughter realm or you're out of the manslaughter             
realm.  That is the discretion.  He indicated the bill would                   
prevent any discretion.  Representative Berkowitz said you could               
always aggravate the sentence or argue for an aggravation of                   
sentence.  He said, "I think that while we incorporate the                     
aggregator that the conduct was knowingly directed towards a victim            
under the age of 16, that's the kind of aggravator that's                      
appropriate.  I'm concerned about those DWI (driving while                     
intoxicated) cases and I'm not trying to minimize this, they're                
tragic, but it's a different type of tragedy.  And the punitive                
part should be viewed differently, that's where you need the                   
discretion."                                                                   
                                                                               
Number 0927                                                                    
                                                                               
REPRESENTATIVE PORTER asked if there is a fiscal note from the                 
Department of Corrections.                                                     
                                                                               
MR. HUBER stated there is a zero fiscal note from the Department of            
Corrections.                                                                   
                                                                               
VICE CHAIRMAN BUNDE called for a brief at-ease for the purpose of              
proposing an amendment.                                                        
                                                                               
Number 1111                                                                    
                                                                               
VICE CHAIRMAN BUNDE called the meeting back to order and asked Mr.             
Jardell if he had some proposed amendatory language.                           
                                                                               
MR. JARDELL responded that the committee could use some of the same            
language that is in HB 375 which reads after the word "the," insert            
"conduct resulting in the conviction was knowingly directed toward             
a child under the age of 16."  He noted that would be on page 4,               
line 16.                                                                       
                                                                               
REPRESENTATIVE PORTER interjected, "Also on line 27."                          
                                                                               
VICE CHAIRMAN BUNDE asked if there was an objection to the                     
amendment.  There being none, the amendment was adopted.                       
                                                                               
CHAIRMAN GREEN returned to the meeting and Vice Chairman Bunde                 
explained the amendment to him.                                                
                                                                               
Number 1203                                                                    
                                                                               
CHAIRMAN GREEN asked, "Does partial incapacitation get over here if            
the person is drunk driving an automobile [and] doesn't intend to              
knowingly hit the child, but is out of whack?"                                 
                                                                               
Number 1226                                                                    
                                                                               
REPRESENTATIVE NORMAN ROKEBERG said, "Just a point of information,             
Mr. Chairman, we're making the manslaughter conviction on a                    
knowingly but (indisc.) basis.  In this state, do we ever prosecute            
under first or second degree murder for a vehicular accident if it             
was really aggravated, and then wouldn't the same principle apply              
then?"                                                                         
                                                                               
REPRESENTATIVE PORTER said "knowingly" is in the wrong place.  He              
said, "What we have done is said that if you have committed                    
manslaughter under the elements of manslaughter, which isn't                   
knowingly, but knew that whatever your action was put a child in               
jeopardy in effect, then you're presumed for a 7-year sentence                 
instead of a 5."                                                               
                                                                               
REPRESENTATIVE ROKEBERG questioned why that wouldn't apply to a                
homicide.                                                                      
                                                                               
REPRESENTATIVE BERKOWITZ said Section 5 sweeps up Representative               
Rokeberg's concern.  He said, "You can charge murder two if the                
victim is under 16.  It will cause all the elements of homicide,               
which are elevated over the elements of manslaughter in terms of               
level of proof.  See, all we've done with the manslaughter is say              
the only part that has an elevated level is if you have to know                
that the victim was 16.  With manslaughter or with homicide, all               
the elements have to be at a higher level of proof."                           
                                                                               
REPRESENTATIVE ERIC CROFT referred to page 3, Section 5, and said,             
"Defendant convicted of murder, and going to your point, that if               
it's -- we don't have to say there 'and knew it was child,' because            
once we're in murder and say, 'murder of a' -- on page 3, line 25,             
'is convicted of the murder of a child,' the court is going to read            
'knowingly' into that because it's an element of a murder charge."             
Representative Croft stated, "We are not making it a knowingly                 
manslaughter.  We're making it manslaughter with all its criminal,             
negligence, recklessness-type standards, but then the 'knowingly'              
comes in only for the age of the victim."                                      
                                                                               
Number 1401                                                                    
                                                                               
MR. HUBER said one important provision to point out that is                    
contained in CSSB 218 that isn't in HB 375, is the elevation of a              
Class C felony to a Class B felony for criminally negligent                    
homicides contained in Section 3.  That provision is not contained             
at all in HB 375 and the Department of Law agrees that it is an                
important provision to have in the bill.                                       
                                                                               
REPRESENTATIVE BERKOWITZ asked how many (indisc.) cases do we have             
in the state annually.                                                         
                                                                               
DEAN GUANELI, Chief Assistant Attorney General, Legal Services                 
Section - Juneau, Criminal Division, Department of Law, came before            
the committee.  He explained the number is fairly small, probably              
about six or less every year.  Mr. Guaneli referred to the                     
provision of making criminally negligent homicide a Class B felony             
and said the way the criminal homicide statutes are currently                  
structured, there is first and second degree murder and then there             
is manslaughter is a Class A felony.  Criminally negligent homicide            
is a Class C felony which makes it comparable to burglary of a                 
warehouse or stealing a television set worth more than $500.  It is            
comparable to a fairly low level felony conduct.  The idea to                  
elevate it to a Class B felony, so there is not that great                     
distinction between manslaughter and criminally negligent homicide,            
has been around for a long time.  Mr. Guaneli referred to the                  
Sentencing Commission that met in the early 1990s, which he was a              
member of, and said a majority of that commission voted that this              
should be a change in the law.  He said a lot of defense attorneys             
tend to think this might be a good result in a lot of cases -- a               
lot of cases where prosecutors are unsure whether they'll get a                
Class A felony manslaughter conviction, don't want to agree to a               
Class C felony criminally negligent homicide conviction, they might            
feel better about something in the middle, a Class B felony                    
negligent homicide conviction.  He stated he believes a lot of                 
defense attorneys think that they may be able to negotiate pleas               
that might be more appropriate to the particular circumstances.                
                                                                               
MR. GUANELI said, "The other thing that we have found, particularly            
in child homicide deaths, some of them do end up criminally                    
negligent homicide for one reason or another.  The kinds of                    
sentences that we have seen in those cases are typical of other                
criminally negligent homicide sentences and they're in the 1-year              
to maybe 18-month range.  A lot of people feel that for the death              
of a child, that's just too little.  And so a Class B felony range,            
which is more in the 2- to 3- to 4-year range, people feel a lot               
more comfortable with.  And so that was the reason why this was                
suggested.  This was originally in [HB] 375, and I had a big fight             
with the legislative attorneys who won out saying that there was a             
single subject problem and so Senator Halford's bill didn't have               
the problem in it and so it's here.   That's why I prefer this bill            
rather than the comparable homicide provisions in [HB] 375."                   
                                                                               
Number 1572                                                                    
                                                                               
CHAIRMAN GREEN said, "Is it your understanding, I think we've                  
discussed this before, when you have an omnibus bill like that,                
there is section -- assuming both were to pass, this is an elevated            
penalty.  Would that then, in bill drafting -- and you pass both of            
them.  The net result of statute would be the more -- this would               
take precedent over what's in [HB] 375?"                                       
                                                                               
MR. GUANELI responded, "Mr. Chairman, I believe that because HB 375            
does not make any change in this particular provision and this bill            
does, that the bill that makes the amendment would take effect."               
                                                                               
Number 1607                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ referred to Class B felonies and said                 
there was the Jackson case where there is mandatory minimums.  He              
asked if that will have any impact of suggested minimums, through              
the court, on first felonies.                                                  
                                                                               
MR. GUANELI explained that the Jackson case suggested a sentence               
benchmark range, generally in the 1- to 3-year area, the 1-year                
side being for mitigated offenses and the 3- to 4-year side being              
more aggravated Class B felony offenses.  He noted that was                    
guidelines by the court.  It wasn't presumptive sentencing or                  
mandatory minimum sentencing.                                                  
                                                                               
Number 1643                                                                    
                                                                               
REPRESENTATIVE PORTER made a motion to move CSSB 218(FIN), as                  
amended, from committee with individual recommendations and with               
the zero fiscal note.  There being no objection HCS CSSB 218(JUD)              
moved out of the House Judiciary Standing Committee.                           
                                                                               
CONFIRMATION HEARING                                                           
                                                                               
Number 1670                                                                    
                                                                               
CHAIRMAN GREEN announced the next order of business would be                   
confirmation hearings.                                                         
                                                                               
Violent Crimes Compensation Board                                              
                                                                               
CHAIRMAN GREEN said the first confirmation would be Carol L. Alley,            
M.D., to the Violent Crimes Compensation Board.                                
                                                                               
REPRESENTATIVE BUNDE made a motion to move the name Carol L. Alley,            
whose appointment is the Violent Crimes Commission, from committee             
with individual recommendations.  There being no objection, Carol              
L. Alley's confirmation was advanced forward.                                  
                                                                               
Commission on Judicial Conduct                                                 
                                                                               
Number 1775                                                                    
                                                                               
CHAIRMAN GREEN announced the second confirmation would be Mary                 
Matthews to the Commission on Judicial Conduct.                                
                                                                               
REPRESENTATIVE JAMES indicated she knows Ms. Matthews.                         
                                                                               
REPRESENTATIVE BUNDE made a motion to move the name Mary Matthews,             
whose appointment is to the Commission on Judicial Conduct, from               
committee.  There being on objection, Mary Matthews' confirmation              
advanced forward.                                                              
                                                                               
CHAIRMAN GREEN said there is also the confirmation of Jeffrey M.               
Feldman, Esq., to the Commission on Judicial Conduct.                          
                                                                               
REPRESENTATIVE PORTER made a motion to move the name Jeffrey M.                
Feldman, Esq., to the Commission on Judicial Conduct.  There being             
no objection, Jeffrey Matthew's confirmation advanced forward.                 
                                                                               
CSSB 304(RLS) - REGULATION OF MOTOR VEHICLES & HWYS                            
                                                                               
Number 1840                                                                    
                                                                               
CHAIRMAN GREEN indicated the next order of business would be CSSB
304(RLS), "An Act relating to the bail or fine for an offense                  
committed in a highway work zone; and providing for an effective               
date," sponsored by Senator Donley.                                            
                                                                               
JAMES ARMSTRONG, Legislative Assistant to Senator Dave Donley,                 
Alaska State Legislature, came before the committee.  He explained             
the effective date is April 30, 1999, to coincide with the start of            
the construction season.                                                       
                                                                               
REPRESENTATIVE JAMES made a motion to move CSSB 304(RLS) out of                
committee with individual recommendations and with the attached                
zero fiscal note.  There being no objection, CSSB 304(RLS) moved               
out of the House Judiciary Standing Committee.                                 
                                                                               
CHAIRMAN GREEN called for an at-ease at 2:00 p.m.  He called the               
meeting back to order at 2:12 p.m.                                             
                                                                               
HB 196 - WILLS, TRUSTS, & OTHER TRANSFERS                                      
                                                                               
Number 1930                                                                    
                                                                               
CHAIRMAN GREEN announced the next item on the agenda was HB 196,               
"An Act relating to wills, intestacy, nonprobate transfers, and                
trusts; and amending Rule 24, Alaska Rules of Civil Procedure."  He            
asked Dave Pree, Legislative Assistant to Representative Joe Ryan,             
to come before the committee to present HB 196.                                
                                                                               
Number 1954                                                                    
                                                                               
DAVE PREE, Legislative Assistant to Representative Joe Ryan, Alaska            
State Legislature, said there had been some changes made since the             
last committee hearing on HB 196.                                              
                                                                               
REPRESENTATIVE PORTER made a motion to adopt CSHB 196, Version H as            
the working draft.  There being no objection, that version was                 
before the committee.                                                          
                                                                               
Number 1997                                                                    
                                                                               
REPRESENTATIVE JOE RYAN, Sponsor of HB 196, said the concerns                  
voiced by the Department of Law and Representative Porter at an                
earlier meeting have been addressed in the proposed committee                  
substitute.                                                                    
                                                                               
CHAIRMAN GREEN asked for a brief explanation of the changes made in            
the proposed committee substitute.                                             
                                                                               
REPRESENTATIVE PORTER directed the committee's attention to page 9,            
line 27, and said the language had been reworded.  He explained                
that in a situation of a trust with joint trustees, there are some             
activities of the trust that require unanimous trustees' sign off.             
If an individual trustee within the group is dissatisfied with a               
particular activity, this language allows that person to indicate              
in writing to the other trustees and the beneficiary - or the                  
representative if the beneficiary is incompetent - that they do not            
wish to be held liable for this particular action.  That being                 
done, the trustee can sign for the activity because of the                     
requirement for unanimous trustee consent.                                     
                                                                               
Number 2063                                                                    
                                                                               
REPRESENTATIVE RYAN explained that Assistant Attorney General, Mary            
Ellen Beardsley of the Department of Law believed the statutory                
reference in Section 2 of the previous committee substitute was in             
error, so the correct statute is reflected in the proposed                     
committee substitute.  Additionally, she had suggested the term                
"uniform" be changed to "Alaska" in Section 11.  He said one of the            
problems he's discovered is there actually is no Uniform (indisc.)             
Investor Act.  There are seven drafts which have been made by the              
Uniform Law Commission and this is one of the drafts that has been             
used by seven other states.  So, it's a uniform, nonuniform law.               
Lawyers seem to understand that, but the general public doesn't.               
So, to avoid confusion, it was changed to the Alaska Trust Act.                
                                                                               
Number 2130                                                                    
                                                                               
REPRESENTATIVE PORTER clarified there had been concern that the                
members of this committee might have believed this was "the"                   
Uniform Trust Act of the law commissioners.  He said it isn't                  
because there isn't one.  There may be one next year.                          
                                                                               
REPRESENTATIVE PORTER continued that on page 12 of the original                
bill, there was a provision that said, "Notwithstanding any other              
section of law, a trustee may lease, buy or sell, including a                  
lease, purchase or a sale in the establishment of a trust service              
office, from or to the trust the trustee represents as a trustee if            
specifically authorized to make that in the trust instrument."  He             
said basically, that is self-dealing and general common law in this            
area disallows self-dealing, so it was deleted.                                
                                                                               
REPRESENTATIVE CROFT asked if it had been deleted in (h)?                      
                                                                               
REPRESENTATIVE PORTER confirmed it had been deleted.  He pointed               
out the next change on page 13, line 19, and said this section                 
covers mingled funds and funds are not supposed to be mingled.                 
This addresses a situation where funds have been mingled and a                 
person is trying to straighten it out and the sequence of effect on            
the trust.  Language was added on line 19, "Nothing in this section            
is intended to authorize the mingling of trust funds".                         
                                                                               
Number 2313                                                                    
                                                                               
REPRESENTATIVE PORTER directed the committee's attention to Section            
13.36.180 on page 15 and said there had been a provision which                 
attempted to hold a trustee not liable for a tort that was                     
committed if it was committed incident to the kind of business                 
activity in which the trustee was properly engaged.  The language              
was deleted because it seemed to be an inconsistent statement.                 
                                                                               
REPRESENTATIVE CROFT said, "So, it had been you're not liable if               
it's the kind of business you're supposed to be doing, but you may             
be ..."                                                                        
                                                                               
REPRESENTATIVE BERKOWITZ interjected, "You're not liable if you do             
something wrong that you weren't supposed to be doing, but thought             
you should have been able to."                                                 
                                                                               
REPRESENTATIVE PORTER added, "Yes, but you were engaged in the                 
business you were supposed to be engaged in.  But if it was a tort,            
it was a wrong.  I mean it doesn't make any difference whether you             
engage in the right business or the wrong business, a tort is a                
tort."                                                                         
                                                                               
REPRESENTATIVE RYAN interjected the tort would go against the trust            
versus the individual if it can be shown the individual wasn't                 
guilty of personal fault.                                                      
                                                                               
REPRESENTATIVE RYAN stated, "I would say that - the way I                      
understand it - not being an estate planning attorney or a trustee             
- is that I would think that the action, the way I read this is,               
did I intentionally set out to commit this tort or was this                    
inadvertent in the course of business.  There is a liability that              
hangs out - now where do we hang the liability?  Is it hung on the             
trust or is it hung on the individual who had a personal fault in              
committing the act?  My understanding of this change makes it if it            
wasn't a personal fault, then you don't have a liability."                     
                                                                               
Number 2435                                                                    
                                                                               
REPRESENTATIVE CROFT noted that in both drafts, the language in                
that section begins, "A trustee who has incurred personal liability            
for a tort committed in the administration of the trust ...." which            
appeared to him to jump through all the hoops of trust law.  There             
is some reason to attach personal liability for the tort, so ....              
                                                                               
TAPE 98-78, SIDE B                                                             
Number 0001                                                                    
                                                                               
REPRESENTATIVE CROFT ... "rather than say trust liability, as an               
entity.  So, once you've gone through all those, it does seem to me            
that there should be only limited exoneration and I take it                    
Representative Porter takes out that exoneration because they've               
already been found to be personally liable.  To that extent, that              
change makes sense.  And the new section does end, '... or if the              
trustee or officer was not guilty of personal fault in incurring               
the liability' - I don't know that's necessary given you already               
said 'has incurred personal liability for a tort', but it does                 
clarify it."                                                                   
                                                                               
Number 0037                                                                    
                                                                               
REPRESENTATIVE PORTER explained the next change is in Section (e),             
page 14, which again excluded the personal liability of the                    
trustee, but he didn't think the previous language gave enough                 
notice to the beneficiary (indisc.).  He noted the language in the             
proposed committee substitute was not what he had requested.  He               
added, "They had a two-tiered method of titling their signature;               
one as trustee and the other one not individually liable - oh, they            
just had and not individually.  If they signed it as trustee, this             
was prima facie evidence to exclude the trustee from personal                  
liability and if it was signed as trustee and not individually,                
that would constitute irrebuttable evidence on intent to exclude               
the trustee from personal liability.  And I didn't think that gave             
enough notice, so I suggested that it be changed to 'and not                   
individually liable' so that that anyone whose money it was                    
recognized that that's what that signature meant.  But they have               
added, unfortunately, the words that I took out in there, so I                 
would move an amendment, if you're willing, on page 15, line 1, I              
would delete the first four words and the first ten words of line              
2."   He clarified the amendment would delete the last four words              
on line 1, and the first ten words of line 2 of page 15.                       
                                                                               
CHAIRMAN GREEN asked if there was objection to the amendment?                  
                                                                               
Number 0158                                                                    
                                                                               
REPRESENTATIVE JAMES asked Representative Porter to clarify the                
reason for the amendment.                                                      
                                                                               
REPRESENTATIVE PORTER explained that if a trustee is going to place            
him or herself in a position where there's irrefutable evidence                
they are not personally liable, they should communicate that to the            
benefactor and the settler.                                                    
                                                                               
REPRESENTATIVE JAMES said her concern, having operated as a                    
trustee, she had to indicate "as trustee" after her signature to               
eliminate the chance of being liable.                                          
                                                                               
REPRESENTATIVE PORTER remarked he wants it perfectly clear "if                 
there's refutable evidence."  He said he would not have a problem              
if the committee wanted to add "as trustee" back in there, but make            
it back to the prima facie evidence.                                           
                                                                               
Number 0225                                                                    
                                                                               
REPRESENTATIVE RYAN commented that under the Alaska Trust Act, it's            
a complete gifting and the settler is really no longer involved                
unless retaining a beneficial interest.  Once it's settled and the             
gift tax is paid, it's a complete gifting and the settler has no               
control over it any longer.  As a beneficial interest, the settler             
still has no control; it's discretionary on the part of the                    
trustee's part whether to give them a distribution or not.  So,                
really the only people this would apply to is the beneficiaries.               
                                                                               
Number 0263                                                                    
                                                                               
REPRESENTATIVE CROFT stated he was uncomfortable with the                      
"irrebuttable" nature of the language.                                         
                                                                               
REPRESENTATIVE PORTER said, "I wouldn't be opposed to going back to            
the way that Representative James described it was fine with me.               
(Indisc.) signing as trustee is prima facie evidence of no personal            
liability, which (indisc.) short of any evidence to the contrary."             
                                                                               
Number 0373                                                                    
                                                                               
REPRESENTATIVE PORTER said, "I would move an amendment that on --              
okay, it's this one -- line 1, page 15, all of the first line be               
deleted except the last word and on line 2, 'irrebuttable' be                  
deleted and 'prima facie' be inserted.  So, how it would read then             
is 'In a contract action under this section, the addition of the               
words' -- I'm sorry, we'll have to keep words -- the first word of             
that line we'll have to keep -- 'addition of the words as trustee              
after the signature of a trustee to a contract constitutes prima               
facie evidence of an intent to exclude the trustee from personal               
liability."                                                                    
                                                                               
Number 0466                                                                    
                                                                               
REPRESENTATIVE PORTER noted this was a friendly amendment to his               
proposed amendment.                                                            
                                                                               
CHAIRMAN GREEN asked if there was objection?  Hearing none,                    
Amendment 1 was adopted.                                                       
                                                                               
REPRESENTATIVE ROKEBERG referred to lines 11 - 14 and asked why a              
person who commits a tort while managing a trust, could be                     
reimbursed with respect to the extent of the increase in the value             
of whatever act committed.                                                     
                                                                               
REPRESENTATIVE RYAN said he really didn't know.                                
                                                                               
Number 0530                                                                    
                                                                               
REPRESENTATIVE ROKEBERG referred to line 16 and asked why a                    
charitable trust is treated differently.                                       
                                                                               
NOTE:  Answer is indiscernible due to numerous individuals speaking            
at the same time.                                                              
                                                                               
Number 0583                                                                    
                                                                               
REPRESENTATIVE CROFT asked if someone could give him an example of             
"when someone commits a tort as a trustee, that increases the                  
value of the trust property" as indicated on page 15, line 11.                 
                                                                               
REPRESENTATIVE PORTER recalled the logic is that it was a tortuous             
act that got the money in there in the first place, so to the                  
extent that whoever was harmed needs the money back, would sue the             
trustee and the trustee can take that money and give it back to the            
person that was harmed.  The trustee shouldn't benefit from the                
illegal act.                                                                   
                                                                               
REPRESENTATIVE CROFT said that makes sense, but it doesn't                     
specifically say, "when sued by the wrong party and found liable,              
the trustee can take the increase from the trust and then give it              
back."  There could be a potential situation where the trustee does            
a tort, isn't caught for it, and says, "I did a great tort for you             
and I want the money from it."                                                 
                                                                               
REPRESENTATIVE PORTER interjected that it's the amount of gain as              
a result of the tort to the trust.                                             
                                                                               
REPRESENTATIVE CROFT said, "Right.  I could, as the tortfeasor                 
trustee, I could -- there's no requirement here that I have to have            
been sued and owed the money for the wrongful gain yet."                       
                                                                               
REPRESENTATIVE RYAN cited an example of an individual engaged in an            
inside trading deal and the trust benefitted from it.                          
                                                                               
REPRESENTATIVE CROFT stated, "That may be the more logical example.            
So in that then, I as the trustee - inside trade - the trust gets              
the advantage and I say now, 'I want the increase in that stock                
value' and I get it."  This just gets it back to the trustee, not              
back to the injured party.                                                     
                                                                               
Number 0763                                                                    
                                                                               
REPRESENTATIVE RYAN said, "The way I understand it, the trust                  
basically increases in value, but as the trustee, if I have to be              
liable for that increase, that's not particularly fair because the             
money is in the trust - it could be recovered from the corpus of               
the trust to pay back, so why do you nail me?"                                 
                                                                               
REPRESENTATIVE CROFT suggested the language in (b) should be more              
strongly tied to the language in (a).                                          
                                                                               
There was further discussion regarding suggested language changes.             
                                                                               
REPRESENTATIVE ROKEBERG pointed out the problem is the language                
doesn't address what the trustee does with the money.                          
                                                                               
REPRESENTATIVE JAMES said she thought it was purely and simply a               
measurement.  She doesn't read this as the money going out of the              
trust.                                                                         
                                                                               
REPRESENTATIVE RYAN said, "Well, you delineate the rules under                 
which the trustee operates - liability or not liability - it'd be              
up to the court to decide that particular action and affect to                 
remedy would it not?                                                           
                                                                               
REPRESENTATIVE ROKEBERG said it reads "reimbursement to the                    
trustee" though.                                                               
                                                                               
Number 1000                                                                    
                                                                               
REPRESENTATIVE JAMES said, "If I might.  It does say reimbursement             
for the liability out of the trust funds if the trustee has paid               
the claim.  Then (indisc.) back, but otherwise in (b) it says that             
if the trustee commits a tort, increases the dollar of the trust               
property, the trustee is entitled to exoneration or reimbursement              
with respect to the tort to the extent of the increase in value.               
She interprets that to mean the trustee is relieved of that much,              
but the money still stays in the trust, so she didn't understand               
the discussion of taking the money out of the trust to pay                     
something when nothing is getting paid, but rather getting relieved            
of having to pay it because it's already there as a result of the              
tort.                                                                          
                                                                               
Number 1035                                                                    
                                                                               
REPRESENTATIVE CROFT believed there was somewhat of a point in what            
Representative James' comment if it didn't say "or reimbursement".             
He added, "If it said entitled to exoneration, relief and that's               
the measure idea you're putting in, but it says 'or reimbursement',            
so I am entitled to reimbursement from the trust - it's not just a             
measure - it's an entitlement of payment."                                     
                                                                               
REPRESENTATIVE JAMES interjected, "Because you've incurred personal            
liability."                                                                    
                                                                               
REPRESENTATIVE CROFT replied, "Right, well, if I add that section              
that says that, but right now it just says if I committed a tort."             
                                                                               
Number 1067                                                                    
                                                                               
CHAIRMAN GREEN asked the sponsor to explain the intent.                        
                                                                               
REPRESENTATIVE RYAN said, "We're saying that he increases the value            
of the trust property, he's entitled to be exonerated or reimbursed            
with respect to the tort to the extent of the increase in value                
even though he otherwise wouldn't be entitled, but because there is            
a gain - the tort - he has a responsibility for his liability for              
the increase in value and so the increase in value is determined --            
I want to phrase this right - I don't want to get the words wrong              
-- exoneration, reimbursement to the extent of the increase in                 
value even though he otherwise wouldn't be entitled because if he              
hadn't increased the value, he would be personally responsible for             
whatever that value was.  But since there was the increase in value            
and that can be recovered, then he doesn't have to bear it - the               
increase in value bears it - the trust bears it."                              
                                                                               
CHAIRMAN GREEN said his concern was that somehow it's going through            
the trustee.                                                                   
                                                                               
Number 1140                                                                    
                                                                               
STEVE NOEY, Title and Affiliation Unknown, said, "AS 13.36.180 -               
this is just a statement or a definition - provides that a trustee             
who has incurred a personal liability for a tort committed in the              
administration of a trust, is entitled to exoneration from the                 
trust if the tort was a common incident of the kind of business the            
trust was engaged in or if the tort was not a common incident then             
the trustee was not personally liable.  I think that the reason for            
this is, let's say that Wally Hickel had in his will that his                  
hotel, the Captain Cook, would go into trust upon his death.  It               
goes into trust upon his death and the trustee automatically                   
becomes liable and the administrator of the hotel.  There's a slip             
and fall on the property during the time that the trustee is taking            
possession of it and tried to put new management on the property or            
whatever's happening - it's a common incident type thing.  But I               
think what they're saying is the trustee didn't cause this thing -             
it was a common incident like a slip and fall or a car accident if             
they had a delivery truck, and so in that the trustee would not be             
liable."                                                                       
                                                                               
REPRESENTATIVE PORTER said that wouldn't increase the value of the             
trust.                                                                         
                                                                               
CHAIRMAN GREEN suggested that may be true for a tort where the                 
trustee didn't do something to actually enhance the value of the               
trust - this is just an operational sort of situation.                         
                                                                               
MR. NOEY agreed that's an operational thing.                                   
                                                                               
Number 1266                                                                    
                                                                               
MR. PREE said, "If the trustee, in the course of managing this                 
trust, commits a tort, there may be a question of standing with                
respect to the trust and the person who committed the tort.  The               
trustee who committed the tort would be -- increased the value of              
the trust -- held liable for such trust increase and because of the            
standing issue, they would be able to recover -- or he would be                
exonerated by the trust for whatever that increase was to address              
the standing question that whoever the tortfeasor was has against              
the trustee or the person who committed the tort."                             
                                                                               
REPRESENTATIVE ROKEBERG said he thought Mr. Noey had some notes on             
subsection (b).                                                                
                                                                               
Number 1333                                                                    
                                                                               
UNIDENTIFIED SPEAKER:  "He just says a simple example may                      
illustrate the application of AS 13.36.180 if we assume that a                 
person who operates a delivery service as a sole proprietor, dies              
and appoints a trustee who decides to continue the business on a               
temporary basis until it can be sold.  While making a delivery, an             
employee of the business is negligent and injures a third party.               
The third party sues the trustee and not the trust.  And since the             
employee was negligent, the trustee will be liable under the                   
doctrine of respondent superior - don't ask me what that means -               
even though the trustee was not personally at fault.  AS 13.36.180             
would allow the trustee to be reimbursed by the trust in this                  
instance because the delivery is a common incident, et cetera."                
                                                                               
REPRESENTATIVE PORTER noted that pertains to subsection (a).  He               
continued, "And to (b), Mr. Chairman, let me just read it once what            
we've gotten - if there's any questions about it, before we move               
it.  But what we've changed here is taking out 'commits a tort                 
that' - the fourth, fifth, sixth and seven word and then adding the            
rest of it so it would read, 'If a trustee has incurred personal               
liability for a tort committed in the administration of the trust              
and that tort increases the value of the trust property, the                   
trustee is entitled to exoneration or reimbursement with respect to            
the tort to the extent of the increase in value even though the                
trustee would not otherwise be entitled to exoneration or                      
reimbursement.'"                                                               
                                                                               
REPRESENTATIVE ROKEBERG asked, "Well, if there's a claim from a                
third party, would there not be an increase - it'd be offset?"                 
                                                                               
REPRESENTATIVE PORTER remarked, "That's why we're saying, 'as                  
incurred personal liability for a tort committed in the                        
administration', so there is a bill against him personally.  And in            
the situation where that act actually increased the value of the               
trust, that bill can be paid to the extent of that increase and                
anything over that would have to be paid by the ....  Which puts               
the money that was unlawfully gained back."                                    
                                                                               
Number 1525                                                                    
                                                                               
REPRESENTATIVE PORTER said, "I've only got one more and basically              
it's the same kind of a thing that we're dealing with in another               
section that cut out a whole bunch of middle ground and just said              
if you've got personal liability -- if you're not personally                   
liable, you're not liable.  That business activity stuff that we               
took out once before, we took out a second time in another section             
on page 16."  He asked for a moment to find to locate the exact                
location.                                                                      
                                                                               
Number 1611                                                                    
                                                                               
REPRESENTATIVE ROKEBERG said in reading ahead to the language on               
page 16, "if the trust is created by writing or by oral statement              
to the trustee at the time of the creation of trust that the trust             
is created orally" seems rather unusual.                                       
                                                                               
Number 1661                                                                    
                                                                               
MR. JARDELL said his understanding is that some states allow oral              
wills and because these trusts are going to be nationwide, there               
could be a situation of a will that was orally created in one state            
that incorporated a trust in it and "if you could prove it up under            
the laws of that state, then it would be a valid (indisc.)."                   
                                                                               
REPRESENTATIVE RYAN noted there are a lot of existing trusts that              
can be moved from the jurisdictions in which they were created to              
Alaska and would be administered under Alaskan law.  He added, "And            
(indisc.) substantial trusts because of the advantages we have.                
That's why we're (indisc.-coughing) this business up here - from               
offshore jurisdictions and so forth, bringing back on shore.  In               
fact, Senator Murkowski and Representative Young and Stevens are               
going to be talked to about creating an exemption trying to get                
some of this money back on shore by making an exemption in the law             
for -- you don't get penalized if you bring it back within a                   
certain period of time.  And then we hope to have that brought here            
into Alaska  (indisc.) northern jurisdiction, so that's basically              
what this is.  So, it covers any trust made in other jurisdictions             
and ....                                                                       
                                                                               
CHAIRMAN GREEN remarked that he was aware of oral wills because                
they're fairly immediate, but he had never heard of an oral trust              
which carries on and on.                                                       
                                                                               
MR. JARDELL said, "My understanding would be that if you create an             
oral will and within that will, your will creates a trust."                    
                                                                               
CHAIRMAN GREEN observed that he could have a written trust, but if             
it's orally given to another person, the whole thing is oral.                  
                                                                               
MR. JARDELL replied, "My understanding would be that the whole                 
thing is oral.  If I'm out in the woods and I get shot and I turn              
to Representative Croft and say, 'This is my will - I have $5                  
million - take it, invest it, give my kids $100,000 when they turn             
18 and until they die', in some states that may be a valid will and            
a valid trust arrangement ...."                                                
                                                                               
REPRESENTATIVE ROKEBERG said hopefully, the statutes provide that's            
not an allowable trust agreement in the state of Alaska.                       
                                                                               
REPRESENTATIVE RYAN remarked that if they're imported to Alaska,               
they would fall under what was HB 101 last year.                               
                                                                               
CHAIRMAN GREEN said, "Well, what I think you're trying to get at is            
that you could actually say that we could incorporate from out of              
state, but that we would not be able to able to create oral wills              
within the state."                                                             
                                                                               
REPRESENTATIVE PORTER found the location he had been looking for               
and said, "The only other thing is that the changes that were made             
on page 15 on line -- well, the changes that I described that I                
made to 180 were also made to 185 that if evolved that tort for a              
business - 'tort of a common incident in the kind of business                  
activity in which the trustee was properly engaged' - we took that             
that out because I don't know what that meant - it wasn't a tort if            
you were properly engaged in the business, but .... that was                   
removed from 180 and 185.  That's the rest of the changes."                    
                                                                               
Number 1982                                                                    
                                                                               
REPRESENTATIVE ROKEBERG referred to Section 13.36.170,                         
Unenforceable oral trust created by deed, and said he wasn't sure              
why deeds of trust were included in this legislation.                          
                                                                               
CHAIRMAN GREEN noted that HB 196 would be held in committee for                
further discussion.                                                            
                                                                               
ADJOURNMENT                                                                    
                                                                               
Number 2051                                                                    
                                                                               
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at             
3:08 p.m.                                                                      

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