Legislature(1993 - 1994)
02/28/1994 01:15 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 28, 1994
1:15 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice-Chair
Rep. Gail Phillips
Rep. Pete Kott
Rep. Joe Green
MEMBERS ABSENT
Rep. Jim Nordlund
Rep. Cliff Davidson
COMMITTEE CALENDAR
HB 316: "An Act adopting the Uniform Statutory Rule
Against Perpetuities; and providing for an
effective date."
MOVED OUT OF COMMITTEE
*HB 334: "An Act relating to criminal sentencing; and
relating to mandatory life imprisonment, parole,
good time credit, pardon, commutation of sentence,
reprieve, furlough, and service of sentence at a
correctional restitution center for offenders with
at least three serious felony convictions."
HEARD AND HELD IN COMMITTEE
Confirmation of Ethel Staton to the Board of Governor's of
the Alaska Bar.
Confirmation of Laurie Dahms to the Violent Crimes
Compensation Board.
Confirmation of Janice Leinhart to the Judicial Council.
Confirmation of Robert Congdon to the Violent Crimes
Compensation Board.
Confirmation of Jeffrey Feldman to the Commission on
Judicial Conduct.
HB 162: "An Act authorizing capital punishment,
classifying murder in the first degree as a
capital felony, and establishing sentencing
procedures for capital felonies; authorizing an
advisory vote on instituting capital punishment;
and providing for an effective date."
SSHB 162 MOVED OUT OF COMMITTEE
(* First public hearing.)
WITNESS REGISTER
TIM BENINTENDI
Legislative Assistant
Rep. Carl Moses
Alaska State Legislature
State Capitol
Juneau, AK 99801-1182
465-3764
Position Statement: Testified on HB 316 on behalf of
prime sponsor
ART PETERSON
National Conference of Commissioners for Uniform state Laws
350 N. Franklin St.
Juneau, AK 99801
586-4000
Position Statement: Testified on HB 316
REP. CON BUNDE
Alaska State Legislature
State Capitol
Juneau, AK 99801-1182
465-4843
Position Statement: Prime Sponsor of HB 334
DANIELLA LOPER
Committee Aide
House Judiciary Committee
Alaska State Legislature
State Capitol
Juneau, AK 99801-1182
Position Statement: Asked question on HB 334
DEAN GUANELI
Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99801-0300
465-4049
Position Statement: Testified on HB 334
JUDGE JIM HANSEN
Superior Court
303 K Street
Anchorage, AK 99501
264-0440
Position Statement: Testified on HB 334
ED McNALLY
District Attorney
310 K Street
Anchorage, AK 99501-1975
269-6300
Position Statement: Testified on HB 334
JANICE LIENHART
Victim's for Justice
619 E. 5th Avenue
Anchorage, AK 99501
278-0977
Position Statement: Testified on HB 334
ETHEL STATON
P.O. Box 829
Sitka, AK 99835
747-8136
Position Statement: Testified via teleconference
LAURIE DAHMS
425 Dahlia, Suite L
Palmer, AK 99645
745-1777
Position Statement: Testified via teleconference
JANICE LEINHART
619 East Fifth Ave.
Anchorage, AK 99501
Position Statement: Testified via teleconference
ROBERT COGDON
7300 South Park Drive
Anchorage, AK 99516
Position Statement: Testified via offnet
JEFFREY FELDMAN
500 L Street, Suite 400
Anchorage, AK 99501
Position Statement: Testified via offnet
PREVIOUS ACTION
BILL: HB 316
SHORT TITLE: RULE AGAINST PERPETUITIES
SPONSOR(S): REPRESENTATIVE(S) MOSES
JRN-DATE JRN-PG ACTION
01/03/94 2009 (H) PREFILE RELEASED
01/10/94 2009 (H) READ THE FIRST TIME/REFERRAL(S)
01/10/94 2010 (H) JUDICIARY
02/14/94 (H) JUD AT 01:15 PM CAPITOL 120
02/28/94 (H) JUD AT 01:15 PM CAPITOL 120
BILL: HB 334
SHORT TITLE: SENTENCING;3RD SERIOUS FELONY OFFENDER
SPONSOR(S): REPRESENTATIVE(S) BUNDE,Olberg,Porter
JRN-DATE JRN-PG ACTION
01/03/94 2014 (H) PREFILE RELEASED
01/10/94 2014 (H) READ THE FIRST TIME/REFERRAL(S)
01/10/94 2015 (H) JUDICIARY, FINANCE
02/28/94 (H) JUD AT 01:15 PM CAPITOL 120
BILL: HB 162
SHORT TITLE: CAPITAL PUNISHMENT FOR MURDER
BILL VERSION: SSHB 162
SPONSOR(S): REPRESENTATIVE(S) SANDERS,Olberg,Bunde,Kott,
Vezey,James
JRN-DATE JRN-PG ACTION
02/18/93 380 (H) READ THE FIRST TIME/REFERRAL(S)
02/18/93 380 (H) JUDICIARY, FINANCE
02/22/93 421 (H) COSPONSOR(S): BUNDE
02/24/93 445 (H) COSPONSOR(S): KOTT
03/01/93 495 (H) COSPONSOR(S): VEZEY
03/02/93 510 (H) COSPONSOR(S): JAMES
11/16/93 (H) MINUTE(JUD)
11/16/93 (S) MINUTE(JUD)
01/19/94 2109 (H) SPONSOR SUBSTITUTE
INTRODUCED-REFERRALS
01/26/94 (H) JUD AT 01:15 PM CAPITOL 120
01/26/94 (H) MINUTE(JUD)
01/28/94 (H) JUD AT 01:15 PM CAPITOL 120
01/28/94 (H) MINUTE(JUD)
01/31/94 (H) MINUTE(JUD)
ACTION NARRATIVE
TAPE 94-29, SIDE A
Number 000
The House Judiciary Standing Committee was called to order
at 1:25 p.m. on Monday, February 28, 1994. A quorum was
present. Chairman Porter announced that the committee would
be hearing HB 316, HB 334, and HB 162.
HB 316 - RULE AGAINST PERPETUITIES
Number 030
TIM BENINTENDI, Legislative Aide to Rep. Carl Moses, Prime
Sponsor of HB 316, said the desirability of enacting HB 316
centers on two main criteria. One is to simply administer
the estate in trust and the other is to reduce perpetuity
litigation. He indicated that uniformity of the rule among
the states is attractive because the mobility of American
society has generated a range of legal complexities in this
area. He indicated that passage of HB 316 would add Alaska
to 20 other states which have adopted the uniform language
contained in HB 316.
Number 077
REP. PHILLIPS asked for a simple explanation of the contents
of HB 316.
Number 083
MR. BENINTENDI responded that HB 316 basically upgrades the
body of law currently in Alaska dealing with the rule
against perpetuities. He indicated the principal common law
rule is very short, but it's implications throughout the
statute dealing with the rule are very complex and HB 316
simply adopts the National Conference of Commissioners on
Uniform State Laws' upgraded language.
Number 134
CHAIRMAN PORTER asked if there was a lay version of the rule
against perpetuities.
Number 157
ART PETERSON, Attorney, appearing as a Uniform Law
Commissioner for the State of Alaska, testified in support
of HB 316. He indicated the lay version of the rule was
contained in the legislation itself. He remarked that the
rule against perpetuities involves future interests; i.e.,
if you were to deed something to your son for life, and to
your son's children when your son dies, they have a future
interest and your present deed conveys a present interest.
Then, once you have conveyed that interest, the future
interest of those grandchildren is vested. They then have a
right to that deed and it can't be taken away from them.
They have that vested future interest. The policy of common
law that gave rise to this difficult rule against
perpetuities was that we don't want property held in
perpetuity. Generally, we want that perpetuity rapped up;
i.e., life plus 21 years. He indicated that on lines 8 and
9 on page 1, nonvested property interest is invalid unless,
when the interest is created, it is certain to vest or
terminate no later than 21 years after the death of an
individual then alive. He indicated further that on lines
10 and 11, you don't invalidate just for the mere
possibility that a future child is born to someone that
would invalidate the whole thing.
Number 319
CHAIRMAN PORTER asked if in his will his property were to go
to his son, and his son decides that that property, which he
doesn't have yet, were to go to his son, is that his power
of appointment or does he actually have to have it first?
Number 340
MR. PETERSON responded that he actually has to have it
first.
Number 353
CHAIRMAN PORTER then asked, if he bequeathed his property to
his son and his son makes out a will that says he bequeathed
it to his son, why is that somehow different than him having
given the property to his son.
Number 356
MR. PETERSON responded that if you are still alive when your
son dies, you have the option of deciding or changing your
mind and selling the property, or willing it to your second
son.
Number 360
CHAIRMAN PORTER asked for an example of a nonvested
interest.
Number 362
MR. PETERSON responded that one example is where there is a
power of appointment. Another would be if there is an age
contingency. Another example would be if you had a
provision where your son wouldn't get the property until he
got married.
Number 428
REP. GREEN asked whether, if he granted you something, when
"I pass on, you have the power of authority because its
yours?"
Number 430
MR. PETERSON responded that that was correct "if it was
mine. But because of the kinds of things we are talking
about here, I only have a life interest, a right to get the
income from this property, for example, during my life."
Number 435
REP. GREEN asked whether you couldn't divorce yourself from
the thing until you die.
MR. PETERSON responded that yes, if you granted a life
estate, "then it's mine. But if you give it from Green to
Peterson for Peterson's life, then to whomever Peterson
designates, that's different. Then you've created that sort
of future interest that the rule of perpetuities is going to
regulate."
Number 458
REP. GREEN asked how he gives the property in fee simple to
you with a life estate and then it goes to somebody you
designate.
Number 461
MR. PETERSON responded that "what you've given me is not fee
simple. You've only given me a life estate. That person
down the line gets the fee simple."
Number 463
REP. GREEN said that "without designating I can divest
myself of everything with only partial to you and then you,
in turn, can obtain full title through this designation;
i.e., not having control of it, are you giving away more
than you have?"
Number 471
MR. PETERSON responded that "you are giving away more than I
have. All I'm doing is appointing the ultimate recipient,
but it's your control that actually starts this process."
Number 531
DANIELLA LOPER, House Judiciary Committee Aide, asked where
the common law rule against perpetuities limit all trusts to
a 90 year period.
Number 539
MR. PETERSON responded that the use of a flat period of 90
years simplifies the process of measuring the permissible
vesting period for the wait and see element. The
alternative would be to measure the period on a case by case
basis, called the "measuring lies approach." The 90 year
period is designed to approximate the average margin of
safety period provided under the wait and see method using
actual measuring lives or by traditional perpetuities
savings clauses.
Number 586
CHAIRMAN PORTER asked whether there were any further
questions regarding the rule of perpetuities.
Number 594
REP. GREEN moved that HB 316 be moved from the Judiciary
Committee with individual recommendations.
Number 596
CHAIRMAN PORTER asked for further discussion and any
objections. Hearing none, he declared HB 316 moved out of
committee.
HB 334 - SENTENCING; 3RD SERIOUS FELONY OFFENDER
Number 619
REP. CON BUNDE, Prime Sponsor of HB 334, testified that the
intent of this legislation is to deal with the violent
predator in our society. He further stated that this
legislation would not affect a great deal of people, perhaps
six per year. Rep. Bunde indicated that there was a CS for
HB 334 and asked the committee if they could address the CS.
Number 635
REP. GREEN moved that the committee adopt the CS for HB 334
as the document of record.
Number 636
CHAIRMAN PORTER moved the CS as being before the committee.
Number 639
REP. BUNDE indicated that the CS addresses several of the
problems raised by the Department of Law; i.e.,
prosecutorial discretion, constitutional questions, and some
problems that have been addressed in other states. The
point he wanted to make was that the intent of the bill was
not to make someone who gets into trouble with the IRS,
defaces something in the post office, etc., it is not the
intent to put them in jail for life. What he is talking
about here is violent offenders who are what we call
predators and repeat offenders who are causing a large
portion of the crime and endangering society.
Number 674
DEAN GUANELI, Assistant Attorney General, Criminal Division,
Department of Law, testified that the committee substitute
requires a 99 year mandatory sentence for someone who is
convicted of a Class A or Unclassified felony, and who has
been previously convicted of similar offenses at least
twice. He further testified that this bill gives
prosecutors some prosecutorial discretion in deciding
whether to proceed with this mandatory sentencing provision
or not and he feels that consideration is very important in
order to eliminate, perhaps, some unjust result that might
occur. He further indicated the bill requires that the
third felony be an unclassified offense.
Number 776
JUDGE JIM HANSEN, Superior Court, Anchorage, testified via
teleconference in support of the legislation and further
testified that HB 334 would be a good tool to use and he is
pleased that prosecutorial discretion is a component of the
legislation. Specifically, Judge Hansen testified that on
page 4, line 26, adding the word "similar" and deleting the
words "substantially identical" would create difficulties
for the court.
REP. GREEN asked if there would be any benefit of having a
mandatory life or another 15 year sentencing addition to
present law that would lock up an individual for the
remainder of his life.
MR. GUANELI responded that the first two "strikes" could be
a class of lower felonies that would satisfy those first two
strikes. He then added that on the first felony conviction,
an individual might only serve one or so years. On the
second felony, they might serve only four or so years, maybe
more. He felt they were talking about people who are in
their late twenty's or early thirty's who would commit the
serious third felony.
TAPE 94-29, SIDE B
Number 006
CONFIRMATION OF ETHEL STATON TO BOARD OF GOVERNOR'S OF
ALASKA BAR
Number 008
CHAIRMAN PORTER suspended testimony on HB 334 and moved to
take up confirmation of Ethel Staton to the Board of
Governor's of the Alaska Bar Association.
Number 078
ETHEL STATON testified via teleconference on her background
and life in Alaska.
Number 105
CHAIRMAN PORTER asked Ms. Staton if she was familiar with
the function of the Alaska Bar.
Number 111
MS. STATON responded that she has served on the Alaska Bar
Board over the past two years.
Number 120
REP. JAMES moved that Ethel Staton's name be forwarded with
individual recommendations.
Number 130
CHAIRMAN PORTER asked for objections; and hearing none,
moved the confirmation of Ethel Staton from committee.
CONFIRMATION OF LAURIE DAHMS TO THE VIOLENT CRIMES
COMPENSATION BOARD
Number 140
CHAIRMAN PORTER brought up Laurie Dahms' appointment to the
Violent Crimes Compensation Board.
Number 149
LAURIE DAHMS provided background information and indicated
she has been serving on the Violent Crimes Compensation
Board for the past six months and enjoys dealing with the
various issues that come before the board.
Number 179
REP. JAMES moved the confirmation of Laurie Dahms from
committee with individual recommendations.
CHAIRMAN PORTER asked if there were any objections; and
hearing none, the confirmation of Laurie Dahms was moved
from committee.
CONFIRMATION OF JANICE LEINHART TO THE ALASKA JUDICIAL
COUNCIL
Number 196
CHAIRMAN PORTER next brought before the committee the
confirmation of Janice Leinhart to the Alaska Judicial
Council.
Number 198
JANICE LEINHART testified that the decision that the
Judicial Council make are important decisions and she feels
her input from a citizen's point of view could be a viable
part of the activities of the Judicial Council.
Number 214
REP. JAMES moved the confirmation of Janice Leinhart to the
Judicial Council with individual recommendations.
Number 219
CHAIRMAN PORTER asked if there were any objections; and
hearing none, moved the confirmation of Janice Leinhart from
committee.
CONFIRMATION OF ROBERT CONGDON TO THE VIOLENT CRIMES
COMPENSATION BOARD
Number 223
CHAIRMAN PORTER next brought before the committee the
confirmation of Robert Congdon to the Violent Crimes
Compensation Board.
Number 227
ROBERT CONGDON testified that he is an attorney and serves
currently as the attorney representative to this board. He
further stated that he has found the experience on this
board to be rewarding and was pleased to be nominated to
serve another term.
Number 242
REP. JAMES moved the confirmation of Robert Congdon to the
Violent Crimes Compensation Board with individual
recommendations.
Number 245
CHAIRMAN PORTER asked if there were any objections; and
hearing none, the confirmation of Robert Congdon was moved
from committee.
CONFIRMATION OF JEFFREY FELDMAN TO THE COMMISSION ON
JUDICIAL COUNCIL
Number 252
CHAIRMAN PORTER next brought before the committee the
confirmation of Jeffrey Feldman to the Commission on
Judicial Conduct.
Number 257
JEFFREY FELDMAN testified that he is an attorney in
Anchorage and appreciates the opportunity to serve on the
Board on behalf of the Governor. He further indicated that
he has worked with the Ninth Circuit on various issues and
he feels he has the experience which is crucial to ensure
public confidence in the judicial system is maintained.
Number 275
REP. JAMES moved the confirmation of Jeffrey Feldman with
individual recommendations.
Number 282
CHAIRMAN PORTER asked if there were any objections and
hearing none, the confirmation of Jeffrey Feldman was moved
from committee.
HB 162 - CAPITAL PUNISHMENT FOR MURDER
Number 291
REP. PHILLIPS moved to rescind the committee's action in
failing to move HB 162 from committee at this time.
Number 295
CHAIRMAN PORTER asked for discussion on the motion.
Number 298
REP. PHILLIPS, in speaking to the motion, indicated that
when she cast her vote on not moving HB 162 from committee,
she did so with the concern that the committee did not have
testimony that concurred with the feelings of the public on
this issue, particularly from the Kenai Peninsula. She
further indicated, for the record, that she had a file with
132 direct communications in support of HB 162 and 39
communications against HB 162 and asked that this material
be considered a part of the record.
Number 306
CHAIRMAN PORTER restated the motion before the committee and
asked for further discussion or objection to the motion.
Hearing none, HB 162 was brought before the committee.
Number 345
REP. JAMES moved Sponsor Substitute for HB 162 from
committee with individual recommendations.
Number 349
REP. GREEN objected to the motion.
REP. KOTT testified that he supported HB 162 and that he
firmly believed that there were individuals who committed
such heinous crimes that there was no hope for them and that
there was then a need for the death penalty.
REP. GREEN testified that he felt there were reasonable
alternatives to keeping violent offenders away from society
without instituting a death penalty and that the fiscal
notes indicated that it was less costly to keep them
incarcerated. He further expressed concern that while
public opinion may be overwhelming in support of HB 162, he
simply could not support such a measure.
Number 423
REP. JAMES testified that while she understood the arguments
surrounding the cost of implementing a death penalty as well
as the moral issues raised surrounding HB 162, she felt
there is a kind of crime, such as multiple death or
dismemberment, that some people do to another person, and
there should be a capital punishment law on the books. She
therefore felt obligated to support public opinion on this
issue.
Number 455
REP. KOTT remarked that if you look at life imprisonment for
a person who is twenty years old, if you were to look at the
cost, you would come up with about a two million dollar
fiscal note. He felt that the potential was there for a
wash as far as the fiscal ramifications were concerned. He
further testified that he felt government had a
responsibility to society that says whether you are behind
bars or on the street, government should protect its
citizens. He felt HB 162 would show an effective deterrent
and should be implemented.
Number 494
CHAIRMAN PORTER testified that he would support moving HB
162 from committee, but unless he heard something totally
different than the testimony previously before the
committee, he felt that the present 99-year sentence, or
life without parole, was sufficient. He further felt that
having been affected by budgets dealing with this type of
activity, he felt we could not, in good conscience, spend
money on someone who, in effect, is not going to perpetrate
any more crimes in society. He, therefore, would not
support HB 162 if it were to come to the House floor for a
vote.
Number 544
REP. KOTT remarked that the last time this bill was heard
they did make an amendment that would take away the advisory
vote provision of the bill so the bill would move from
committee as a Sponsor Substitute for HB 162.
Number 574
CHAIRMAN PORTER asked for a roll call vote which was taken
as follows:
REP. GREEN Yes
REP. KOTT Yes
REP. PHILLIPS Yes
REP. JAMES Yes
REP. PORTER Yes
Number 579
CHAIRMAN PORTER declared that Sponsor Substitute for HB 162
amended Judiciary was moved from committee.
The House Judiciary Committee was adjourned at 2:42 p.m.
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