Legislature(1997 - 1998)
03/17/1997 01:24 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 17, 1997
1:24 p.m.
MEMBERS PRESENT
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Joe Green, Chairman
Representative Jeannette James
COMMITTEE CALENDAR
CONFIRMATION HEARINGS ON GOVERNOR'S APPOINTMENTS TO:
Violent Crimes Compensation Board
Louisianna (Louann) Cutler
- CONFIRMATION ADVANCED
Leslie B. Wheeler
- SCHEDULED BUT NOT HEARD
* HOUSE BILL NO. 115
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
- MOVED CSHB 115(JUD) OUT OF COMMITTEE
(* First public hearing)
PREVIOUS ACTION
BILL: HB 115
SHORT TITLE: 1997 REVISOR'S BILL
SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE COUNCIL
JRN-DATE JRN-PG ACTION
02/05/97 242 (H) READ THE FIRST TIME - REFERRAL(S)
02/05/97 242 (H) JUDICIARY
02/05/97 243 (H) SECTIONAL ANALYSIS/H SUPP #4
03/10/97 (H) JUD AT 1:00 PM CAPITOL 120
03/10/97 (H) MINUTE(JUD)
03/14/97 (H) JUD AT 1:00 PM CAPITOL 120
03/14/97 (H) MINUTE(JUD)
03/17/97 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
LOUISIANNA (LOUANN) CUTLER, Attorney at Law
Preston Gates and Ellis
420 L Street, Suite 400
Anchorage, Alaska 99501-1937
Telephone: (907) 276-1969
POSITION STATEMENT: Testified as appointee to Violent Crimes
Compensation Board.
PAMELA FINLEY, Revisor of Statutes
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801
Telephone: (907) 465-2029
POSITION STATEMENT: Provided comments on HB 115.
ACTION NARRATIVE
TAPE 97-41, SIDE A
Number 0001
VICE CHAIRMAN CON BUNDE called the House Judiciary Standing
Committee to order at 1:24 p.m. Members present at the call to
order were Representatives Bunde, Rokeberg, Croft and Berkowitz;
Representative Porter arrived shortly thereafter. Chairman Green
and Representative James were excused.
CONFIRMATION HEARINGS ON GOVERNOR'S APPOINTMENTS TO:
Violent Crimes Compensation Board
VICE CHAIRMAN BUNDE advised members they would first consider the
Governor's appointments of Louisianna (Louann) Cutler and Leslie B.
Wheeler to the Violent Crimes Compensation Board. Those appointees
would provide comments via teleconference.
Number 0095
LOUISIANNA (LOUANN) CUTLER, Attorney at Law, Preston Gates and
Ellis, testified via teleconference, saying her resume would
provide some idea of her background. She believed she had been
asked by Governor Knowles to serve mostly because of her experience
with the Abused Women's Aid in Crisis (AWAIC), the domestic
violence agency in Anchorage for which she had been vice president
of the board for approximately five years.
MS. CUTLER said she has always been interested in public service
and would be happy to answer the Governor's call and serve on the
board. She had attended one meeting, providing her only direct
familiarity with the board's procedures. However, she believed she
would be able to handle the position and would enjoy doing so, as
it is a real, direct way to help victims of violent crimes.
MS. CUTLER explained that the statute is pretty clear about who is
entitled to compensation and who is not. Basically, it is a
question of sifting through claims to make sure that the type of
victim and type of requested reimbursement are covered under the
statute. She offered to answer questions.
VICE CHAIRMAN BUNDE noted that Representative Porter had joined the
meeting. Speaking on behalf of the committee, he commended Ms.
Cutler for her willingness to serve and volunteer time to help make
the process work more smoothly. He asked whether members had
questions. There being none, he explained that Ms. Cutler's
confirmation would be advanced to the full body, which did not
indicate the intention of any member to vote for or against her
confirmation at that time.
VICE CHAIRMAN BUNDE asked whether Leslie B. Wheeler was available
via teleconference.
Number 0427
REPRESENTATIVE ERIC CROFT asked whether these were for two separate
vacancies.
VICE CHAIR BUNDE affirmed that.
REPRESENTATIVE CROFT declared a possible conflict of interest
because of working with Ms. Cutler at the law firm of Preston Gates
and Ellis as a summer associate some years ago. It did not involve
a financial relationship but a personal one.
VICE CHAIRMAN BUNDE noted Representative Croft's declaration and
said he would be asked to vote.
The teleconference operator advised Vice Chairman Bunde that Ms.
Wheeler was not available to testify via teleconference.
REPRESENTATIVE BRIAN PORTER suggested they attempt to reach Ms.
Wheeler at her home number.
VICE CHAIRMAN BUNDE called a brief at-ease at 1:28 p.m. while
attempting to contact Ms. Wheeler. The meeting reconvened at 1:30
p.m. Ms. Wheeler was unavailable.
HB 115 - 1997 REVISOR'S BILL
Number 0590
VICE CHAIRMAN BUNDE advised members they would next consider House
Bill No. 115, "An Act making corrective amendments to the Alaska
Statutes as recommended by the revisor of statutes; and providing
for an effective date."
PAMELA FINLEY, Revisor of Statutes, Legislative Legal and Research
Services, Legislative Affairs Agency, explained that HB 115 is a
technical clean-up bill prepared every year and required by
statute.
MS. FINLEY directed members' attention to Section 8, the most
substantive portion of the bill. Prior to 1992, claims against the
state had to be brought in superior court. The legislature changed
that so that claims could be brought in district court as well, if
they were within the district court's jurisdictional limit. Ms.
Finley advised members that she had been told by the Attorney
General's Office that some people had been arguing that because
"superior court" had been deleted, the state had waived its
Eleventh Amendment immunity; she assured members that was not the
intention of the drafting. She reported that there was no
indication to her, in any of the hearings, that that was the
intention of the legislature. Therefore, she had corrected that.
MS. FINLEY said other revisions were technical clean-up matters,
including two sections relating to the welfare laws passed the
previous session. She reported that she had provided a sectional
analysis and three proposed amendments.
Number 0726
REPRESENTATIVE PORTER requested further clarification of Section 8.
MS. FINLEY explained that prior to 1992, it said, "in the superior
court", clearly a state court. That language was deleted in order
to give the state district courts jurisdiction over claims against
the state that would involve smaller amounts, so that those would
not have to be heard in superior court.
MS. FINLEY said according to personnel from the Office of the
Attorney General, it had been suggested that by deleting the
language, "the superior court", the legislature may have intended
to allow itself to be sued in federal court. Ms. Finley stated,
"And that was not the intention. Or, it was the title of the bill
was actually relating to the jurisdiction of the district court.
And usually if we'd meant federal district court, we would have
said so. But nevertheless, it's much clearer this way."
REPRESENTATIVE PORTER noted that it goes on to say, "no one can sue
us in a state court for anything, except as set out in [AS]
44.77.040(c)." He asked about that provision.
MS. FINLEY said for a person who may present a claim under AS
44.77, she believed that is a special section relating to contract
claims. She added, "But people are still allowed to sue. For
instance, if there's an auto accident with a state vehicle, you can
sue."
Number 0830
REPRESENTATIVE NORMAN ROKEBERG referred to page 13, lines 4 and 5,
and asked why those changes were made, breaking it into
subsections.
MS. FINLEY explained that this section is amended fairly
frequently. When the semi-colon was included, it went on and on,
being essentially one long sentence. The first sentence, which
defines program receipts, became subsection (a), with subsection
(b) being a definition of program receipts that are not general
fund program receipts. She said it was now easier to read and
would ultimately be easier to amend. There should be no
substantive effect.
REPRESENTATIVE PORTER asked for confirmation that except for
Section 8, there were no substantive changes or additions.
MS. FINLEY replied, "Not that makes any policy choices. I mean, I
always hesitate to say there's no substantive change, because I
wouldn't bother if there weren't some change. But no, nothing in
terms of making a decision that the legislature hasn't already
[made]. We're just conforming numbers, subsections and things like
that."
REPRESENTATIVE ROKEBERG asked whether the reference to the division
of state libraries, archives and museums was the new name of that
division.
MS. FINLEY replied that unfortunately, that division does not exist
in statute. However, if it was going to be referred to, she wanted
to give it the correct, current name. It was formerly known as the
division of libraries.
Number 1003
REPRESENTATIVE ROKEBERG pointed out that he authored a bill two
years ago having to do with a controversial decision by the Revisor
of Statutes in 1978, relating to gender-proofing. It involved
something that was apparently to be nonsubstantive but which was
ultimately substantive. He asked whether there was anything in HB
115 like that.
MS. FINLEY said to the best of her knowledge, and her full intent,
there was nothing like that in HB 115.
Number 1110
REPRESENTATIVE CROFT made a motion to adopt Amendment 1, 0-
LS0231\B.1, Finley, 2/21/97, which read:
Page 1, lines 8 - 9:
Delete "post office"
Insert "mailing [POST OFFICE]"
VICE CHAIRMAN objected for the purpose of discussion and asked that
Ms. Finley explain it.
MS. FINLEY advised members that it amends Section 1. Currently,
there is a reference to "post office" address, and the Office of
the Attorney General recommended substitution of "mailing" address,
as it is a broader term. Sometimes in the bush, for example, there
may not be a post office address.
VICE CHAIRMAN BUNDE removed his objection and asked whether there
were further questions or objections. There being none, Amendment
1 was adopted.
REPRESENTATIVE ETHAN BERKOWITZ made a motion to adopt Amendment 2,
0-LS0231\B.2, Finley, 2/21/97, which read:
Page 5, following line 22:
Insert a new bill section to read:
"* Sec. 10. AS 13.12.603(a) is amended to read:
(a) If a devisee fails to survive the testator and
is a grandparent, a descendant of a grandparent, or a
stepchild of either the testator or the donor of a power of
appointment exercised by the testator's will, the following
apply:
(1) except as provided in (4) of this
subsection, if the devise is not in the form of a class gift
and the deceased devisee leaves surviving descendants, a
substitute gift is created in the devisee's surviving
descendants; the surviving descendants take by representation
the property to which the devisee would have been entitled had
the devisee survived the testator;
(2) except as provided in (4) of this
subsection, if the devise is in the form of a class gift,
other than a devise to "issue," "descendants," "heirs of the
body," "heirs," "next of kin," "relatives," or "family," or a
class described by language of similar import, a substitute
gift is created in the surviving descendants of a deceased
devisee; the property to which the devisees would have been
entitled had all of them survived the testator passes to the
surviving devisees and the surviving descendants of the
deceased devisees; each surviving devisee takes the share to
which the surviving devisee would have been entitled had the
deceased devisees survived the testator; each deceased
devisee's surviving descendants who are substituted for the
deceased devisee take by representation the share to which the
deceased devisee would have been entitled had the deceased
devisee survived the testator; in this paragraph, "deceased
devisee" means a class member who failed to survive the
testator and left one or more surviving descendants;
(3) for the purposes of AS 13.12.601, words of
survivorship, as in a devise to an individual "if the
individual survives me," or in a devise to "my surviving
children," are not, in the absence of additional evidence, a
sufficient indication of an intent contrary to the application
of this section;
(4) if the will creates an alternative devise
with respect to a devise for which a substitute gift is
created by (1) or (2) of this subsection, the substitute gift
is superseded by the alternative devise only if an expressly
designated devisee of the alternative devise is entitled to
take under the will;
(5) unless the language creating a power of
appointment expressly excludes the substitution of the
descendants of an appointee for the appointee, a surviving
descendant of a deceased appointee of a power of appointment
can be substituted for the appointee under this section,
whether or not the descendant is an object of the power."
Renumber the following bill sections accordingly.
Page 17, line 30:
Delete "10 and 11"
Insert "11 and 12"
Page 18, line 1:
Delete "13"
Insert "14"
VICE CHAIRMAN BUNDE asked that Ms. Finley explain Amendment 2.
MS. FINLEY said it amends part of the probate code. Arthur
Peterson, one of the uniform law commissioners, had brought to her
attention that when that section passed, the word "not" had been
omitted, possibly through a proofing error. The language had been
taken from the uniform probate code, which contains that "not."
Therefore, Amendment 2 is to make the language fit with the uniform
probate code.
REPRESENTATIVE BERKOWITZ asked whether this language had ever been
used.
MS. FINLEY advised members that it took effect January 1, 1997.
She believed the inconsistency was brought to Mr. Peterson's
attention by an attorney who is currently having to cope with it.
REPRESENTATIVE BERKOWITZ asked whether it would be appropriate to
offer a friendly amendment to Amendment 2, making it retroactive to
January 1, 1997.
VICE CHAIRMAN BUNDE did not know whether that could be done. He
asked the opinion of Lisa Kirsch, committee aide for the House
Judiciary Standing Committee, but she did not know, either.
Number 1254
REPRESENTATIVE ROKEBERG pointed out that there was a retroactive
effective date on line 18 in Section 41 of the bill.
MS. FINLEY said to the extent they were affecting a vested right,
the retroactivity would have no effect. She suggested saying, "to
the extent constitutionally permissible, it's retroactive."
MS. FINLEY explained, "I've always felt nervous about retroactive
provisions. As a matter of fact, Amendment 3 takes one of them out
because it is such a technical bill and also because I know that
there's at least one member of the Senate who always feels nervous
about any retroactivity in a revisor's bill. I certainly
understand the reason for wanting to make this retroactive, because
it was a typographical error. And I'm not sure that the court
could make sense of it without the `not' in there, to be honest
with you."
REPRESENTATIVE BERKOWITZ suggested members provide an effective
date of least the current date, March 17, 1997.
VICE CHAIRMAN BUNDE pointed out that it would still involve
retroactivity because it would not become effective until signed by
the Governor.
REPRESENTATIVE CROFT asked the reasons for making the other
sections retroactive. He noted that Section 40 makes two sections
retroactive, to July 1, 1995, and to August 16, 1996.
MS. FINLEY explained that the two bill sections being made
retroactive were technical amendments. The definition of "basic
need" in the foundation funding formula was changed from a
subsection (b) to (c); however, the wording was not changed. These
conforming amendments, which cross-reference that definition,
should have been made in that bill.
MS. FINLEY said in that bill, which passed in 1996, the reversal of
(b) and (c) was itself made retroactive to January 1, 1995. Since
that bill contained a retroactive section, she had felt she ought
to raise the issue before the committee as to whether they wanted
these conforming amendments to also be retroactive. She stated,
"In that particular case, I don't think it matters at all one way
or the other, really, because the meaning is the same. The actual
definition of `basic need' has not changed."
Number 1428
VICE CHAIRMAN BUNDE suggested that because the bill would be
considered in the Senate, he would accept the friendly amendment,
if it was the wish of the committee; if there was a problem
meanwhile, he asked that Ms. Finley address it on the Senate side.
Number 1444
REPRESENTATIVE ROKEBERG asked Ms. Finley whether, in her review of
the record, she could unequivocally tell the committee that the
omission was a typographical error. He asked whether there had
been any testimony on the record regarding that language.
MS. FINLEY responded that she had not looked at any committee
hearings to see whether someone had brought it up; however, she had
reviewed the bill draft, which said, "take the uniform probate code
and put it in here"; that code contained the word "not." She
emphasized that from the very first time the bill became public, to
her belief, the "not" was omitted. "It was not that someone took
it out," she added.
VICE CHAIRMAN BUNDE noted that before them was Amendment 2, as
amended to state that it is retroactive to January 1, 1997. He
asked if there was any objection. There being none, Amendment 2,
as amended, was adopted.
REPRESENTATIVE CROFT made a motion to adopt Amendment 3, 0-
LS0231\B.3, Finley, 2/24/97, which read:
Page 17, line 30, through page 18, line 2:
Delete all material.
Renumber the following bill section accordingly.
MS. FINLEY explained that Amendment 3 would delete the
retroactivity section for the definition of "basic need." She said
she did not feel strongly about it one way or the other. She
explained, "I made it retroactive in the bill because the original
amendment that it's conforming other things to was, itself, made
retroactive."
MS. FINLEY stated that the reason there were two dates was that the
1996 bill made the switch in the subsections retroactive to 1995;
therefore, she made one of those changes retroactive to 1995 also.
She said, "The other change was a bill section that was enacted in
1996 and wasn't effective until August of 1996; so, there's no way
to ... retroactively change something that did not exist. So, I
only went back to August of 1996." Ms. Finley restated that she
had no preference about this, although it was probably a little
cleaner to be retroactive; and since there was another retroactive
section already, it probably would do no harm to leave this one in.
REPRESENTATIVE CROFT spoke against Amendment 3, saying the more
they could make these "seamless," the better. "And these do make
it seamless as it exists, and I'd prefer that to having gaps in the
law," he said.
VICE CHAIRMAN BUNDE noted the objection and requested a roll call
vote: In favor was Representative Rokeberg. Opposed were
Representatives Porter, Croft, Berkowitz and Vice Chairman Bunde.
Representative James and Chairman Green were absent. Therefore,
Amendment 3 failed, 4 to 1.
REPRESENTATIVE PORTER made a motion to move HB 115, as amended, out
of committee with individual recommendations and the attached zero
fiscal note. There being no objection, CSHB 115(JUD) moved out of
the House Judiciary Standing Committee.
ADJOURNMENT
Number 1621
VICE CHAIRMAN BUNDE adjourned the House Judiciary Standing
Committee meeting at 1:50 p.m.
| Document Name | Date/Time | Subjects |
|---|