04/14/2004 01:45 PM House JUD
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ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 14, 2004
1:45 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 336
"An Act limiting recovery of civil damages by an uninsured
driver; and providing for an effective date."
- MOVED CSHB 336(JUD) OUT OF COMMITTEE
SENATE BILL NO. 344
"An Act relating to the Uniform Probate Code and trusts,
including pleadings, orders, nonprobate assets, estates of
decedents, minors, protected persons, incapacitated persons,
guardians, conservators, trustees, foreign trusts, principal and
income, and transfer restrictions; relating to corporate voting
trusts; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 427
"An Act relating to guardianships and conservatorships, to the
public guardian and the office of public advocacy, to private
professional guardians and private professional conservators, to
court visitors, court-appointed attorneys, guardians ad litem,
and fiduciaries, and to the protection of the person or property
of certain individuals, including minors; amending Rules 16(f)
and 17(e), Alaska Rules of Probate Procedure; and providing for
an effective date."
- MOVED CSHB 427(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 381
"An Act relating to child endangerment."
- MOVED CSHB 381(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 275
"An Act relating to veterinarians and animals."
- MOVED CSHB 275(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 546
"An Act relating to regulation of the discharge of pollutants
from timber-related activities under the National Pollutant
Discharge Elimination System; relating to waste treatment and
disposal permits; making conforming amendments; and providing
for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 336
SHORT TITLE: CIVIL DAMAGES FOR UNINSURED DRIVERS
SPONSOR(S): REPRESENTATIVE(S) MEYER
01/12/04 (H) PREFILE RELEASED 1/2/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) JUD
03/31/04 (H) JUD AT 1:00 PM CAPITOL 120
03/31/04 (H) <Bill Hearing Postponed>
04/06/04 (H) JUD AT 1:00 PM CAPITOL 120
04/06/04 (H) Heard & Held
04/06/04 (H) MINUTE(JUD)
04/07/04 (H) JUD AT 1:00 PM CAPITOL 120
04/07/04 (H) Failed To Move Out Of Committee
04/07/04 (H) MINUTE(JUD)
04/14/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 344
SHORT TITLE: TRUSTS/ESTATES/PROPERTY TRANSFERS
SPONSOR(S): SENATOR(S) SEEKINS
02/16/04 (S) READ THE FIRST TIME - REFERRALS
02/16/04 (S) L&C, JUD
03/11/04 (S) L&C AT 1:30 PM BELTZ 211
03/11/04 (S) Moved SB 344 Out of Committee
03/11/04 (S) MINUTE(L&C)
03/12/04 (S) L&C RPT 3DP 1NR
03/12/04 (S) DP: BUNDE, DAVIS, SEEKINS; NR: FRENCH
03/17/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/17/04 (S) Moved SB 344 Out of Committee
03/17/04 (S) MINUTE(JUD)
03/17/04 (S) JUD RPT 2DP 2NR
03/17/04 (S) DP: SEEKINS, THERRIAULT; NR: FRENCH,
03/17/04 (S) OGAN
03/26/04 (S) TRANSMITTED TO (H)
03/26/04 (S) VERSION: SB 344
03/26/04 (H) JUD AT 1:00 PM CAPITOL 120
03/26/04 (H) <Bill Hearing Postponed>
03/29/04 (H) READ THE FIRST TIME - REFERRALS
03/29/04 (H) JUD
03/29/04 (H) JUD AT 1:00 PM CAPITOL 120
03/29/04 (H) Bill Postponed To 3/30/04
03/30/04 (H) JUD AT 1:00 PM CAPITOL 120
03/30/04 (H) Scheduled But Not Heard
04/14/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 427
SHORT TITLE: PROTECTION OF PERSONS AND PROPERTY
SPONSOR(S): REPRESENTATIVE(S) ANDERSON
02/04/04 (H) READ THE FIRST TIME - REFERRALS
02/04/04 (H) HES, JUD
04/01/04 (H) HES AT 3:00 PM CAPITOL 106
04/01/04 (H) Heard & Held
04/01/04 (H) MINUTE(HES)
04/06/04 (H) HES AT 3:00 PM CAPITOL 106
04/06/04 (H) Moved CSHB 427(HES) Out of Committee
04/06/04 (H) MINUTE(HES)
04/08/04 (H) HES RPT CS(HES) 1DP 5AM
04/08/04 (H) DP: CISSNA; AM: SEATON, COGHILL, WOLF,
04/08/04 (H) GATTO, WILSON
04/13/04 (H) FIN REFERRAL ADDED AFTER JUD
04/14/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 381
SHORT TITLE: CHILD ENDANGERMENT DRIVING OFFENSES
SPONSOR(S): REPRESENTATIVE(S) MCGUIRE
01/20/04 (H) READ THE FIRST TIME - REFERRALS
01/20/04 (H) HES, JUD
04/06/04 (H) HES AT 3:00 PM CAPITOL 106
04/06/04 (H) Moved CSHB 381(HES) Out of Committee
04/06/04 (H) MINUTE(HES)
04/08/04 (H) HES RPT CS(HES) 1DP 1NR 3AM
04/08/04 (H) DP: WILSON; NR: COGHILL; AM: SEATON,
04/08/04 (H) WOLF, GATTO
04/13/04 (H) FIN REFERRAL ADDED AFTER JUD
04/14/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 275
SHORT TITLE: VETERINARIANS AND ANIMALS
SPONSOR(S): REPRESENTATIVE(S) CHENAULT
04/17/03 (H) READ THE FIRST TIME - REFERRALS
04/17/03 (H) L&C, RES
02/20/04 (H) L&C AT 3:15 PM CAPITOL 17
02/20/04 (H) <Bill Hearing Postponed>
03/29/04 (H) L&C AT 3:15 PM CAPITOL 17
03/29/04 (H) Moved CSHB 275(L&C) Out of Committee
03/29/04 (H) MINUTE(L&C)
03/31/04 (H) RES REFERRAL WAIVED
04/01/04 (H) L&C RPT CS(L&C) NT 3DP 2NR 1AM
04/01/04 (H) DP: CRAWFORD, LYNN, ANDERSON;
04/01/04 (H) NR: ROKEBERG, DAHLSTROM; AM: GUTTENBERG
04/01/04 (H) JUD REFERRAL ADDED AFTER L&C
04/01/04 (H) FIN REFERRAL ADDED AFTER JUD
04/05/04 (H) JUD AT 1:00 PM CAPITOL 120
04/05/04 (H) -- Meeting Postponed to Tues. 4/6/04 --
04/06/04 (H) JUD AT 1:00 PM CAPITOL 120
04/06/04 (H) Heard & Held
04/06/04 (H) MINUTE(JUD)
04/07/04 (H) JUD AT 1:00 PM CAPITOL 120
04/07/04 (H) Heard & Held
04/07/04 (H) MINUTE(JUD)
04/14/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SENATOR RALPH SEEKINS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 344.
BETHANN B. CHAPMAN, Attorney at Law
Faulkner Banfield, PC
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 344 and
responded to questions.
STEPHEN E. GREER, Attorney at Law
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of SB
344.
DAVID G. SHAFTEL, Attorney at Law
Law Offices of David G. Shaftel, PC
Anchorage, Alaska
POSITION STATEMENT: Assisted with the presentation of SB 344.
DOUGLAS J. BLATTMACHR, President
Chief Executive Officer (CEO)
Alaska Trust Company
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 344 and
responded to questions.
PETER B. BRAUTIGAM, Attorney at Law
Hartig Rhodes Hoge & Lekisch, PC
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
SB 344.
JOSHUA FINK, Public Advocate
Anchorage Office
Office of Public Advocacy (OPA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 427.
JAMES H. PARKER, Assistant Public Advocate
Anchorage Office
Office of Public Advocacy (OPA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 427.
BETTY WELLS, Member
Alaska State Association for Guardianship and Advocacy, Inc.
(ASAGA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
427.
KENNETH C. KIRK, Attorney at Law
Kenneth Kirk & Associates
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 427, provided
comments in response to questions and suggested deleting
Sections 1-4 of the proposed committee substitute (CS), Version
I.
HEATH HILYARD, Staff
to Representative Lesil McGuire
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 381 on
behalf of the sponsor, Representative McGuire.
ALLEN STOREY, Lieutenant
Central Office
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of the provisions
being discussed during the hearing on HB 381, and responded to
questions.
LINDA WILSON, Deputy Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
381.
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
proposed Amendment 2 to HB 381; provided comments during
discussion of proposed Amendment 13 to HB 275.
SHARALYN WRIGHT, Staff
to Representative Mike Chenault
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 275 and proposed
amendments, provided comments on behalf of the sponsor,
Representative Chenault.
REPRESENTATIVE MIKE CHENAULT
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 275.
JOE McKINNON, Staff
to Representative Max Gruenberg
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 275, explained
proposed Amendments 14 and 15.
ACTION NARRATIVE
TAPE 04-64, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:45 p.m. Representatives
McGuire, Anderson, Holm, Ogg, Samuels, and Gara were present at
the call to order. Representative Gruenberg arrived as the
meeting was in progress.
HB 336 - CIVIL DAMAGES FOR UNINSURED DRIVERS
Number 0096
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 336, "An Act limiting recovery of civil
damages by an uninsured driver; and providing for an effective
date."
Number 0139
REPRESENTATIVE HOLM moved that the committee rescind its action,
on 4/7/04, in failing to report from committee the proposed
committee substitute (CS) for HB 336, Version 23-LS1254\D,
Bullock, 2/23/04.
Number 0142
REPRESENTATIVE GARA objected, and asked to know the reason for
the motion.
REPRESENTATIVE HOLM declined to give a reason.
A roll call vote was taken. Representatives Ogg, Samuels, Holm,
Anderson, and McGuire voted in favor of the motion to rescind
the committee's action in failing to report from committee the
proposed CS for HB 336, Version 23-LS1254\D, Bullock, 2/23/04.
Representative Gara voted against it. Therefore, the motion to
rescind the committee's action passed by a vote of 5-1.
Number 0248
REPRESENTATIVE SAMUELS moved to report the proposed CS for HB
336, Version 23-LS1245\D, Bullock, 2/23/04, out of committee
with individual recommendations and the accompanying fiscal
notes.
REPRESENTATIVE GARA objected.
Number 0297
A roll call vote was taken. Representatives Ogg, Samuels, Holm,
Anderson, and McGuire voted in favor of reporting the proposed
CS for HB 336, Version 23-LS1245\D, Bullock, 2/23/04, out of
committee. Representative Gara voted against it. Therefore,
CSHB 336(JUD) was reported from the House Judiciary Standing
Committee by a vote of 5-1.
SB 344 - TRUSTS/ESTATES/PROPERTY TRANSFERS
Number 0319
CHAIR McGUIRE announced that the next order of business would be
SENATE BILL NO. 344, "An Act relating to the Uniform Probate
Code and trusts, including pleadings, orders, nonprobate assets,
estates of decedents, minors, protected persons, incapacitated
persons, guardians, conservators, trustees, foreign trusts,
principal and income, and transfer restrictions; relating to
corporate voting trusts; and providing for an effective date."
Number 0340
SENATOR RALPH SEEKINS, Alaska State Legislature, sponsor,
relayed that SB 344 deals with the Uniform Probate Code and
trusts. He went on to say:
A real vital characteristic of [a] highly developed
economy is the ease with which the financial resources
flow from one market to another. In fact, the magnet-
like attraction between money and the market that
offers the most advantageous terms is perhaps best
demonstrated within the financial services industry
itself. Over the years, the Alaska banking industry
has attracted funds to our state as a result of a
particular niche that we have successfully developed
in an obscure corner of the industry known as trust
and estate services. Much of this success can be
attributed to the foresight demonstrated by [the]
Alaska State Legislature. Since 1997, the legislature
has passed numerous bills effectively making Alaska a
premier jurisdiction for this financial specialty.
Just last year, in [SB 87], [we] adopted a more recent
version of the Uniform Principal and Income Act, and
[HB 212] updated other portions of Alaska's trust laws
last year. And both were signed into law last summer.
And while [SB] 344 may not be as far-reaching as the
other two bills, it accomplishes much the same
purpose. It does this by making a host of small,
technical revisions to current statute. It updates
provisions relating to "virtual representation," it
clarifies when a trustee can be relieved of liability,
and it adds provisions which other jurisdictions have
already adopted. Keeping our trust statutes current
has a had a direct, positive impact on our state's
economy, and, over the years, these periodic revisions
have helped bring hundreds of millions of dollars of
trust assets into the state and added tens of millions
of dollars to local bank deposits. Furthermore, it
has increased business activity for attorneys,
accountants, life insurance agents, and brokerage
firms in the state of Alaska.
Number 0532
SENATOR SEEKINS concluded:
Well, necessity, ingenuity, and routine advances in
technology collaborate on a daily basis to reinvent
the world of financial products and services.
(Indisc. - room noise) have successfully staked out a
place in this world through our contemporary set of
trust and estate laws, and [SB 344] now seeks to
preserve our position in what amounts to a highly
fluid marketplace unrestricted by geographic
boundaries. It seems reasonable to us, and this bill
helps us, to keep that money flowing in this
direction.
REPRESENTATIVE HOLM, referring to Senator Seekins's comments
that hundreds of millions of dollars of trust assets are brought
into the state and that tens of millions of dollars have been
deposited in local banks, asked where the difference between
those two amounts has gone.
SENATOR SEEKINS suggested that the difference between those two
amounts has been deposited into trust companies and trust funds.
In response to a comment, he indicated that the changes to
Alaska laws regarding trusts and estates are an attempt at
staying ahead of other states' laws pertaining to this industry.
He mentioned that a small group of lawyers, accountants, and
trust officers has been investigating how to stay on the cutting
edge regarding this issue, and that it is this small group that
has brought forth the concept of SB 344.
Number 0658
REPRESENTATIVE GARA mentioned that he is "sold" on what he
referred to as the economic part of the bill, that which
promotes the industry in the state. He noted, however, that it
seems odd to him that there have been three bills on this
subject in such a short span of time.
SENATOR SEEKINS offered that the aforementioned group brought
forth the concepts of those three bills and relayed to him that
they were the refinements that Alaska law needed in order to
keep up with what other states are doing regarding the trust
industry. He offered his belief that these changes clarify
trust law and will aid in developing the industry.
CHAIR McGUIRE recalled other, past legislation on this issue,
and characterized it as a very complex, ever-changing area of
law. She offered her belief that the Delaware legislature has
been known to convene a session for the purpose of updating the
laws pertaining to this industry.
Number 0952
BETHANN B. CHAPMAN, Attorney at Law, Faulkner Banfield, PC, said
she wants to testify in support of SB 344, and would focus her
comments on two of its provisions. Referring to Sections 2 and
4, she said:
The current law that we have for notice provisions in
probate and trust proceedings is out of date and is
not consistent with our new, complex [trusts] and,
particularly, dynasty trusts that can last, now, in
perpetuity. Section 2 expands the doctrine of what's
known as virtual representation - but really it's
called substitute notice - and this doctrine will
allow notice to be served on one or more persons who
have (indisc.) interest with respect to [a] particular
issue in a trust or estate matter so long as there is
no conflict of interest. And the modifications that
are contained in Section 2 really just expand and
explicitly include specific types of gifts that are
commonly found in trusts. I believe that this change
will insure that parties have access to the courts in
a very efficient manner, and is more consistent with
the types of trusts we are now seeing in Alaska and in
... all other states as well.
The other provision I wanted to focus on is Section 4,
and that [pertains to] limitations on proceedings
against trustees. Currently, we do not have a statute
of limitations ... for proceedings against trustees
for breach of trust unless there's been a final
account, and many times [there] ... can be a very long
period of time before any claims can be brought
against a trustee. A final account is only rendered
when the trust relationship is terminated. In light
of the fact that we now have trusts that can last in
perpetuity, and if there's been no termination of the
trust relationship or trustee relationship, we may
find ourselves in a situation where we have costly and
extremely complex litigation arising out of a claim of
a breach of trust that may have happened many, many,
many years prior to the time the claim was brought to
the courts.
Under current law, there is a six-month statute of
limitations for any claim by a beneficiary against a
trustee once a final accounting has been rendered.
This proposal expands the statute of limitations to
cover claims that could be brought on any interim
accounting that may be rendered, so long as the
beneficiary is provided notice of the limitation
period. Under the current law there is no requirement
that the beneficiary be notified of the time
limitations to bring a breach of trust claim; now,
this provision would expand the six-month limitation
period to cover interim accounting, but also require
the trustee to provide the beneficiary notice of the
time limit. That notice provision is consistent with
what we have in the probate code when we're dealing
with an estate that is going through probate rather
than a trust.
Number 1152
MS. CHAPMAN concluded:
I testify in support of SB 344, and point out that yes
it is the third bill, recently, that we've seen, but
in the last few years there have been major changes in
trust laws, which ... hadn't changed for decades. As
those laws change, I believe Alaska needs to continue
to be in the forefront of having trust laws that are
modern, provide opportunities to both Alaskans and
nonresidents to bring their money to Alaska, and help
the industry. I'll be happy to answer any questions
that anybody may have. Thank you.
MS. CHAPMAN, in response to questions, said:
I don't think people are going to read their interim
accountings any less than they're going to read a
final account. And I believe the six months is
consistent with the approach that it's used in all
probate proceedings and trust proceedings, and that is
that when you're dealing with this type of a
relationship, which is ... a fiduciary relationship,
[then] ... those accountings are very detailed and are
designed to provide information to a beneficiary so
that they know what has happened in an interim period.
And I don't believe that they're putting us at risk,
and [I believe] that the six-month statute of
limitations is consistent with how we approach all
trust proceedings, which is: you don't want these to
sit around and continue to potentially be brought many
years later, because you put the trust at risk - not
just the trustee - [since] ... many times you have a
beneficiary who may become disgruntled down the line,
and if they can go back that many years, you're
putting all the other beneficiaries at risk as well.
I believe the six-month statute of limitations is
protective of all the beneficiaries of a trust, and
more so than I think it's protective of a trustee,
because it ensures that you cannot allow a disgruntled
beneficiary, many years later, to bring a claim -
whether it's valid or brought in bad faith - and tie
up trust assets, [and] cause a trustee to defend a
claim, which, if the trustee has not breached their
fiduciary duty, ... [is] paid from the trust assets.
And I believe this will ensure that those claims are
brought in a timely manner.
MS. CHAPMAN, in response to further questions, indicated that
all breach of trust claims, including those arising from fraud,
would be covered under the legislation, and that if an attorney
is serving as a trustee, the bill would "reduce the tail," but
noted that her firm's policy precludes attorneys serving as
trustees and so she isn't sure that many attorneys do that.
Number 1473
STEPHEN E. GREER, Attorney at Law, relayed that "this has been a
coordinated effort by a group of attorneys." He offered his
belief that SB 344 is a very good bill, and noted that one of
the reasons "we come forward every year with a new bill is that
it takes an incredible amount of time to research ... the bill,
to research the law, and pass it around to other members."
Alaska is very fortunate to have a group of attorneys that are
so interested in the area of law in which they practice that
they are willing to put forth this effort, he opined, adding,
"we can't do it all at once and [so] we've taken it piece by
piece."
Number 1540
DAVID G. SHAFTEL, Attorney at Law, Law Offices of David G.
Shaftel, PC, noted that five states - Alaska, Delaware, Nevada,
Rhode Island, and Utah - have enacted laws dealing with
spendthrift trusts, abolishing the rule against perpetuities,
and providing tax- and asset-protection approaches for estate
planners and their clients. He, too, noted that both Alaskans
and nonresidents are able to take advantage of Alaska's laws
pertaining to trusts and estates, but cautioned that
nonresidents can also chose to take advantage of similar laws in
other states. He spoke of a national conference attended by
active estate planning attorneys and estate planning
accountants, and relayed that a number of provisions in SB 344
were either already enacted by other states or were discussed at
the last conference.
MR. SHAFTEL referred to Sections 3 and 8-11, and said that these
provisions deal with subjects such as moving trusts to Alaska;
clarifying that spendthrift trust limitations are intended to
come within the bankruptcy code's spendthrift trust restriction;
providing for a qualified personal residence trust (QPRT) and a
grantor retained annuity trust (GRAT); providing, with regard to
spendthrift trusts, that fraudulent transfer liability goes
against the settlor that commits the fraudulent transfer;
providing protection for the trustee and other persons who form
limited partnerships or limited liability partnership for the
purpose of minimizing federal estate tax; and providing that any
action brought to challenge a transfer to a trust be brought in
Alaska.
MR. SHAFTEL mentioned that SB 344 also contains: a couple of
technical corrections to [Alaska's version of] the Uniform
Principal and Income Act; a savings-clause provision - in
Section 7 - pertaining to marital trusts; and an elimination -
in Section 1 - of the 10-year limitation on voting trusts. In
conclusion, he said he thinks SB 344 is an excellent bill, and
he urged members to support it.
REPRESENTATIVE GRUENBERG remarked that Section 7, which pertains
to marital trusts, appears to "keep the tax status even if
somebody leaves the magic language out of the trust."
MR. SHAFTEL concurred.
Number 2021
REPRESENTATIVE GRUENBERG asked whether additional language to
that effect ought to be inserted in the bill.
MR. SHAFTEL replied:
It's an interesting idea. We do put such language in
our trusts. ... In other words, we have general
savings clauses that are similar to what you're
talking about, where we indicate that [there's] the
intent, for example, if we're dealing with a marital
deduction trust, ... to qualify for a marital
deduction and that all of the language and provisions
of this trust instrument will be so construed ... in
order to qualify under Internal Revenue Code "2056."
...
So you're right on; I mean, your suggestion is a good
one. Now, in state law, generally what you see are
these more specific types of savings provisions ...,
and there're two of them that your looking at in
Section 7, one of which is already our law, and that
last sentence, which we're adding. Let our group give
some thought to your suggestion, and perhaps ... this
[issue] will come back to you again and maybe we can
improve on this.
REPRESENTATIVE GRUENBERG remarked that if such language were
prepared within the next few days, perhaps it could be added to
the bill via a floor amendment.
Number 2133
REPRESENTATIVE GARA turned attention to Section 11, said it
appears to preclude creditors from going after a trust even if
the owner of the trust is guilty of wrongdoing.
MR. SHAFTEL replied:
If the evildoer in your scenario had transferred
assets to a spendthrift trust well before the actions
and fraud or other conduct ... was involved here, and
that trust had been set up correctly and was
implemented correctly and there was an independent
trustee who had absolute discretion to make
distributions to that particular person or another
member of his family, then the harmed party could not
get at the assets in that trust. And that's true ...
whether we're talking about a self-settled trust or a
third-party trust.
If that person's parents had created a spendthrift
trust - and keep in mind, we're talking about [an]
irrevocable trust that that person has no control,
himself, over anymore ... - and then at a later time
in his life he went out and committed a fraud or a
theft or something worse, you couldn't get at those
assets in that trust. That's just the law, that's the
law in every state in dealing with spendthrift trusts,
and it's the law in five states dealing with self-
settled spendthrift trusts if they were created,
funded, and are truly independent and implemented
correctly.
Number 2270
REPRESENTATIVE GARA asked how current law will be changed by
[Section 11].
MR. SHAFTEL replied:
[Proposed] subsection (l) in Section 11 is a provision
that we are taking almost verbatim from Delaware and
Rhode Island. ... The purpose of this section is to
require that if someone is challenging a transfer to a
trust -- let's take your scenario, and in you're
scenario ... - and we're primarily dealing ... with
nonresidents - a nonresident in New York argues that
the person who set up this Alaska trust committed a
fraudulent transfer. And to give you an example of a
fraudulent transfer: let's take your scenario but put
it in New York state, and say that this person, after
or ... while he was in the process of defrauding the
victim, also transferred assets to a trust in Alaska.
That's a fraudulent transfer and it should be set
aside. And what this provision says here, though, is
that the action to set aside has to occur in Alaska
and not in New York. And what's important about that
is, it has Alaska's procedural law apply then, Alaska
statute of limitations applies to it, and [an] Alaska
court gets to judge the validity of this Alaska trust,
which is set up under Alaska law. This is, as I say,
... a provision that's been enacted in both Delaware
and in Rhode Island ... for exactly the purpose that
I've described.
REPRESENTATIVE GARA said he just wanted to make sure that this
provision is not giving people the ability to avoid paying for
their misconduct by putting money in a trust.
MR. SHAFTEL opined that this provision neither allows such nor
is intended to allow such.
REPRESENTATIVE GARA remarked that if that is the case and
fraudulent transfers are already precluded by law, why add new
language that includes this rule that says one can't recover
from the person's trust.
TAPE 04-64, SIDE B
Number 2390
MR. SHAFTEL replied:
When you get into the area of conflict of laws dealing
with trusts and dealing with fraudulent transfers and
dealing with which state's statute of limitations -
not substantive law - ... applies, if ... the ...
forum state, which is Alaska, ... has a provision in
its law that says that its law and its courts are
going to have jurisdiction, then that procedural
statute of limitations provision will be applied, even
if they were to apply the substantive law of New York
in our example. So ... our Alaska court could decide
to apply New York's substantive fraudulent transfer
law, under the basic rules ... in the area of conflict
of law, but they would apply Alaska's statute of
limitations law because we have this choice of law
provision in our statute.
REPRESENTATIVE GARA asked where in existing law it says that a
person cannot go after the trust assets of someone who
victimized him/her.
MR. SHAFTEL said it is located in AS 34.40.110.
CHAIR McGUIRE concurred.
REPRESENTATIVE GRUENBERG turned attention to page 10, line 4,
which specifically states that it's the superior court that has
jurisdiction, and asked whether there is any reason why the
language couldn't just say "courts of this state."
MR. SHAFTEL said there is no reason why it couldn't.
REPRESENTATIVE GRUENBERG turned attention to page 9, lines 13-
14, which says: "(4) at the time of the transfer, the settlor
is in default by 30 or more days of making a payment due under a
child support judgment or order.". He noted that this language
appears to focus on the time of the transfer, and that if one
were simply up to date on child support payments, the assets of
the trust could not be accessed. He asked Mr. Shaftel to
comment.
Number 2186
MR. SHAFTEL remarked:
This provision has been discussed at length with
regard to prior bills, and actually it goes back to
the original bill in 1997. ... The problem with
changing this provision and broadening it to cure what
you're concerned with is that ... basically what
happens is, you destroy the transfer tax minimization
benefit of these trusts, and ... all gifts to these
trusts would be incomplete gifts and all of the trust
assets would be included in the settlor's gross estate
at death, and we would deprive Alaskans of the ability
to save transfer taxes by using these trusts. ... It
would be a shame to do that.
Now, the discussions in the past have pointed out ...
[that] there's no experience ... with these trusts
being used by "deadbeat dads or deadbeat moms" ... to
defeat child support, and that the tax benefit that I
just referred to greatly outweighs the hypothetical.
And from a theoretical standpoint ... you're
absolutely correct, but it greatly outweighs our
experience. And if we ever do have an experience
where this becomes a major problem or a significant
problem, then it should be addressed, but right now
the price is way too great.
CHAIR McGUIRE concurred that this issue has been addressed
during hearings on prior legislation, adding that the Child
Support Enforcement Division was consulted on this issue with
the result being that the 30-day timeframe was picked as a
compromise. She offered her belief that it would create
uncertainty to change the current language to address the remote
possibility that someone would get current on his/her child
support payments in order to default at a later date.
REPRESENTATIVE GRUENBERG asked whether there might be language
they could add such that if someone later defaults on child
support, he/she runs the risk of "the whole thing falling."
MR. SHAFTEL relayed that he would give that concept some thought
during the interim.
Number 2013
DOUGLAS J. BLATTMACHR, President, Chief Executive Officer (CEO),
Alaska Trust Company, said that he supports SB 344, and thinks
it enhances what's been done since 1997, has created a number of
jobs in Alaska, and has brought a lot of deposits to Alaska and
a lot of money directly to [the estates] of Alaskans.
REPRESENTATIVE GARA turned attention to Section 4, and said it
appears to protect members of the industry from consumers and,
thus, troubles him because he doesn't feel that consumers will
look at an interim accounting as closely as they will a final
accounting. He asked Mr. Blattmachr how he would feel about the
bill if it passed out of committee without Section 4.
MR. BLATTMACHR replied:
We think this is an important provision, and it was
recommended to us at the national conference that [Mr.
Shaftel] mentioned. I think one of the differences is
that ... we have, now, perpetual trusts, that almost
every one we have is a perpetual trust that in theory
can last hundreds if not a thousand years. [So] ...
if you have a trust that was started 100 years ago,
all of a sudden, without this provision, a beneficiary
could say, "Gee, I didn't like your action that you
took 100 years ago; looking in hindsight now, you
should have invested in some other type of
investment." And ... there's ... no time limitation,
and there won't be any. And I think the fact that ...
now, when you get a final accounting, you are not
notified that you have any time restriction; you're
just given a final accounting.
You may look at it, you may not, but you have a six-
month ... window to look at it. [Under this
provision], you have to be told that you have a six-
month window, and the statements that you receive have
to be sufficient enough to have let you know that
there was a problem. So it can't be that ... a
statement is sent and doesn't disclose this
information and then you're off the hook; it has to
have the information so a reasonable person could see
what you did. So we think it's a very important
provision, and we think it will attract a lot of ...
additional business to Alaska and we think a lot of
trusts will be sent to Alaska.
Number 1874
REPRESENTATIVE GARA asked how a shorter statute of limitations
will attract more trust business to Alaska.
MR. BLATTMACHR said a shorter statute of limitations will
eliminate unnecessary trust litigation. What happens now, if a
beneficiary of a trust that was started 200 or 100 years ago
decides to take an action against a trustee, the trustee has the
ability to use the trust assets to protect itself, and if, after
costly and lengthy litigation, the trustee is found to not have
done anything wrong, the trust would have spent a significant
sum of money on something that happened 100 or 200 years ago. A
lot of people like the fact that there is a statute of
limitations, he opined, and that beneficiaries of trusts are a
little more involved in their trusts than they might be in their
brokerage accounts.
REPRESENTATIVE GRUENBERG asked who would receive the
notification in instances where the beneficiary is mentally
disabled, for example, and is therefore represented by another
person, and whether "adequate disclosure" would mean adequate
from the point of view of the beneficiary, of the
representative, of a trust officer, or of "a reasonable person."
He opined that it should mean adequate from the point of view of
the recipient of the information, and remarked that this
provision does not seem to be drafted from the consumer's point
of view and, thus, concerns him.
MR. SHAFTEL replied:
We've used interim accountings without this statute
because we feel it's to the beneficiary's advantage,
as well as ... for the trustee's protection, to at
least annually give an accounting and set up a
procedure. And [we've] done this just through the
court system, where we'll ask for a hearing, and we
will ask that if a beneficiary has any objection, that
they come in within a period of time and make their
objection [known] at that hearing. ...
Number 1723
MR. SHAFTEL added:
And we're doing this with the hope that that will ...
draw their attention to what's been done over the past
year. ... It seems to me it's much to the
beneficiary's advantage to be focusing on [his/her]
trust every year than to have a long period of time.
Now, some trusts that we're talking about that would
be covered by this statute, the one I was just
referring to, went on for about 10 years and then it
was wrapped up. It was, in effect, trust
administration after the surviving spouse died. The
trusts that [Mr. Blattmachr is] referring to are
trusts that don't have final accountings - they just
continue on and on and on.
And it does make a lot of sense for both the trustee
but also equally for the beneficiary to focus on these
trusts every year and have an interim accounting,
which is what we're talking about here, that they have
to focus on. But if something's wrong, it will have
occurred in the last year and they'll have the
evidence and the people around who can verify that
something went wrong. It seems to me it's to the
beneficiary's disadvantage to be lulled into letting
that trust just sit there and at some point perhaps
they'll look at it, have years go by - where there's
been [a] breach of trust or something else ... where
they were harmed - and then have to go back and try
[to] figure out what happened and try [to] find the
people and gather the evidence.
So there's some real advantage in interim accountings
and having a procedure that focuses both the
beneficiary, for the beneficiary's protection, and the
trustee, for the trustee's protection, and gets that
segment of time resolved one way or another.
REPRESENTATIVE GRUENBERG opined, though, that under the language
in Section 4, a plaintiff's lawyer could simply make the claim
that the report did not adequately disclose information
pertaining to a potential breach of trust.
MR. SHAFTEL remarked:
Adequate disclosure is a concept that we're very
familiar with in the trust and estate area. It's in
the Internal Revenue Code. And ... that language that
was dropped - ... "full discloser" - ... was felt to
be ambiguous and require some type of perfection that
couldn't be reached. So it's not a standard that
we're unfamiliar with. ... Clever attorneys in both
sides can always make arguments, and ultimately those
will have to be resolved by the court system if they
get that far. But again, what this provision, as I
understand it, is designed to do, is to provide
statutory support for interim accountings.
Number 1491
MR. SHAFTEL asked Representative Gara to comment on the consumer
protection aspect of this provision.
REPRESENTATIVE GARA remarked:
I just think you're going to get a mixed bag of
clients: those who pay really close attention to
their interim statements, and those who don't. ... I'm
thinking of a compromise that seems to meet the
concerns that you mentioned ... [and] meets my
concerns too. The compelling argument that you make
is, you don't want somebody, 100 years later, to file
a negligence claim against you. That makes sense. On
the other hand, I'm not so comfortable giving them
only six months. That's one thing. The other thing
is, again, I understand [that] you don't want somebody
to file a ... claim against you a long, long, long
time later, but if it's fraud or theft of deceit - and
there are commonly exceptions for that kind of conduct
in the law - I guess I'm not so thrilled about
shortening the statute of limitations for those
things.
So I what I'm thinking of is changing the six-month
period, [for] the interim accounting, to three years;
you don't have to wait your whole life to hear about a
claim in that circumstance, just three years, [and]
we've historically had statute of limitations up to
six years and ten years for property claims and things
like that. That would be one thing. And the other
would be to say that the new amendment that you
propose, that applies to a date from the interim
accounting, applies for breach of trust except for
when that breach is fraud, theft, or deceit.
REPRESENTATIVE GARA continued:
And I can imagine cases of fraud, theft, or deceit.
... In a down stock market you expect that you're
portfolio is going to shrink and you don't notice that
[it] shrunk by an extra $100,000 and [that] it shrunk
by the extra $100,000 because somebody took your
money, and, as somebody who expected to lose money
during that down market, you just didn't go and
question whether or not somebody ... stole money from
you, but I suppose somebody could come back and say,
later on, you should have noticed, you should have
been more mistrustful. And so what I'm thinking of is
just that, to give you what you're asking for except
for in the those cases of egregious conduct, and to do
it for three years rather than six months. How would
that sit with you?
MR. SHAFTEL replied: "Personally, I don't have a problem with
either of those changes, but I would like to defer to [Mr.
Blattmachr] and Peter Brautigam who are involved in this
provision."
Number 1363
PETER B. BRAUTIGAM, Attorney at Law, Hartig Rhodes Hoge &
Lekisch, PC, offered:
My only thought is ... that three years seems very
long, especially for an interim accounting issue,
because that can affect future accountings and the way
... the trustees are going to be investing the money.
I'll defer to [Mr. Blattmachr] on that issue. But the
other point is, the current statute provides for a
six-months [period] after the final accounting. Is
the proposal that that would also be changed to three
years and, if so, I would encourage the group not to
go for a three-year [period] on the final accounting.
REPRESENTATIVE GARA responded: "My understanding is that you
have changed the date from the final accounting to from the
interim accounting. Right?"
REPRESENTATIVE GRUENBERG offered his belief that Representative
Gara is suggesting that they change the "six months" on line 6
of page 5, and leave the "three years" on line 12 of page 5. He
opined that it might be best to have a three-year statute of
limitations on the final accounting and a shorter statute of
limitations on the interim accounting. He suggested making it a
two-year statute of limitations for the interim accounting.
MR. BRAUTIGAM said that if "a client of mine would go to court
and get a final accounting approved by the court, what we would
advise our trustees [to do] is to hold onto the money for
another three years, which would require tax returns and things
of that nature." He added that he would prefer a six-month
statute of limitations on the final accounting.
REPRESENTATIVE GRUENBERG pointed out, however, that current
language in the bill specifies a three-year statute of
limitations on final accountings. Thus, wouldn't Mr. Brautigam
give that advice anyway? he asked.
MR. BRAUTIGAM replied that it would depend on who the trustee is
and what the issues are.
MR. BLATTMACHR concurred that it would depend in the facts and
circumstances.
REPRESENTATIVE GRUENBERG suggested that this issue be looked at
more thoroughly before [moving the bill from committee].
Number 1188
CHAIR McGUIRE relayed that SB 344 would be held over for the
purpose of considering this issue further.
HB 427 - PROTECTION OF PERSONS AND PROPERTY
Number 1160
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 427, "An Act relating to guardianships and
conservatorships, to the public guardian and the office of
public advocacy, to private professional guardians and private
professional conservators, to court visitors, court-appointed
attorneys, guardians ad litem, and fiduciaries, and to the
protection of the person or property of certain individuals,
including minors; amending Rules 16(f) and 17(e), Alaska Rules
of Probate Procedure; and providing for an effective date."
[Before the committee was CSHB 427(HES).]
Number 1129
REPRESENTATIVE ANDERSON, sponsor, made a motion to adopt the
proposed committee substitute (CS) for HB 427, Version 23-
LS1627\I, Bannister, 4/14/04, as the work draft. There being no
objection, Version I was before the committee.
REPRESENTATIVE ANDERSON explained that Version I encompasses
changes and recommendations made in the House Health, Education
and Social Services Standing Committee. He offered his belief
that HB 427 will go a long way towards preventing exploitation
and mistreatment of vulnerable and incapacitated adults
receiving the services of a private guardian or conservator, and
relayed that it was drafted with input from the Alaska State
Association for Guardianship and Advocacy (ASAGA) Inc., Office
of Public Advocacy (OPA), Adult Protective Services, Office of
the Long Term Care Ombudsman, Disability Law Center [of Alaska],
Senior Advocacy Coalition, and [judicial branch of government].
REPRESENTATIVE ANDERSON mentioned that professional guardians -
both private and public - and family guardians provide services
to approximately 2,500 disabled, vulnerable, Alaskan adults. He
noted that under current law, private guardians and conservators
- individuals with the responsibility to make housing, legal,
and medical decisions for the disabled, infirm mentally ill, and
seniors - are completely unregulated by the state. Many other
states regulate private guardians, he remarked, because
vulnerable and incapacitated adults are easy prey for those
wishing to exploit them.
REPRESENTATIVE ANDERSON said that HB 427 grants the state
regulatory authority over private guardians and conservators,
and establishes minimum qualification standards. State
oversight, he opined, will ensure that vulnerable and
incapacitated adults receive the care that they deserve. Under
the bill, the Division of Occupational Licensing would have the
authority to revoke a private guardian's license if he/she is
found to have abandoned, exploited, abused, or neglected someone
in his/her care, or [is shown to be] unfit due to professional
incompetence. In conclusion, he said he supports the bill.
REPRESENTATIVE GRUENBERG asked whether HB 427 was modeled after
legislation in other states.
REPRESENTATIVE ANDERSON said he believed so.
Number 0928
JOSHUA FINK, Public Advocate, Anchorage Office, Office of Public
Advocacy (OPA), Department of Administration (DOA), thanked
Representative Anderson for introducing HB 427, calling it
important legislation. He went on to say:
In this state we regulate barbers, hairdressers,
acupuncturists, [and] ... concert promoters, but we
don't regulate guardians and conservators who ... take
care of incapacitated and vulnerable adults, who are
in positions where they very easily could be
exploited. And we've had some situations of concern
over the past couple of years. This legislation,
which was modeled off of pieces of Arizona's law [and]
Washington [state's law] was put together with a
number of groups .... I do want to say, I'm indebted
to those people I worked with - I [only] ... took
their product and brought it to Representative
Anderson ..., [and] I am grateful that he introduced
that.
MR. FINK, in response to a question, explained that Arizona,
Washington, California, and Texas have laws that require
registration; those laws were looked at during the development
of HB 427.
REPRESENTATIVE GRUENBERG directed attention to Section 6,
regarding the appointment of a guardian ad litem, and asked
whether it modifies Rule 17(c) of the Alaska Rules of Civil
Procedure. He opined that if it does, then there should be an
amendment to the title reflecting that.
MR. FINK offered his belief that the bill does not amend Rule
17(c) of the Alaska Rules of Civil Procedure, but offered to
research that issue.
REPRESENTATIVE GRUENBERG opined that the language on page 11,
line 21, takes away the courts discretion regarding the
appointment of a guardian ad litem.
Number 0661
JAMES H. PARKER, Assistant Public Advocate, Anchorage Office,
Office of Public Advocacy (OPA), Department of Administration
(DOA), offered his belief that although Rule 17(c) allows the
court to appoint a guardian ad litem to sue or defend on behalf
of a infant or incompetent person, Section 6 is not creating a
right for a guardian ad litem; instead, Section 6 modifies
existing statute - Title 13 - regarding the process of
appointing a guardian ad litem and his/her primary function.
Additionally, Rule 17(c) says in part, "The court shall appoint
a guardian ad litem for an infant or incompetent person not
otherwise represented in an action". He offered his belief that
the bill doesn't modify Rule 17(c).
REPRESENTATIVE GRUENBERG pointed out, however, that Rule 17(c)
also says in part "or shall make such other order as it deems
proper", and opined that this language gives the court
discretion.
CHAIR McGUIRE and REPRESENTATIVE GRUENBERG mentioned that the
committee would be requesting an opinion on this issue from
Legislative Legal and Research Services.
Number 0556
BETTY WELLS, Member, Alaska State Association for Guardianship
and Advocacy, Inc. (ASAGA), relayed that she is chair of the
task force that sought assistance from the various groups that
developed HB 427, that she is affiliated with the National
Guardianship Association, Inc., that she works as a "court
visitor" in Anchorage and its surrounding area, and that she has
been involved with the issue of adult guardianship for the last
15 years. She went on to say:
I'm aware that Alaska is not alone in reviewing and
changing the statutes to protect vulnerable adults.
Although most of the changes proposed in this bill
clarify current statutory language and practice, there
is now legislation proposed to regulate private
agencies, and I believe that to be a vital part of the
bill. With some abuse that we uncovered in a court
trial on the viability of a private agency in 2001 and
in 2002, we discovered that we really couldn't
continue to operate without some form of registration
or licensure of private professional guardians.
Our current statute leaves us vulnerable to a system
where there is opportunity for corruption, as
discovered in our own court case. And, as stated
before, there are no regulations providing any
oversight to private guardianship agencies. The court
monitors individual guardianships, and our statutes
have provisions for mandatory reporting;
unfortunately, it's not adequate for the oversight
that we need. Passing this legislation will assist
the courts by licensing professional guardians. It
will take the question of an agency's qualifications
or viability out of [the] court system and allow them
to concentrate on the merits of each case.
I've learned that Alaska is a leader with respect to
respondent's rights in adult guardianship cases: they
have the right to an attorney, to a hearing, to a jury
trial on the issue of incapacity; [and] we have a
great public guardianship program for those indigent
adults who qualify. There is room, however, for
private agencies in Alaska, and [the] ASAGA supports
the appointment of private agencies when appropriate.
By mandating regulations and the establishment of
professional standards, Alaska will continue to be a
leader with respect to these issues. Passing this
bill will go a long way in putting the trust back into
the system.
MS. WELLS concluded:
[The] ASAGA anticipates only a small number of
licenses will be issued, and anticipates no fiscal
note, as the fees generated for obtaining the license
will cover the costs. Licensure will ensure
continuing education in the areas of guardianship, and
[the] ASAGA already sponsors at least one conference
each year, where people can get their continuing
[education]. The bill also outlines minimum
educational requirements for families and friends that
wish to become appointed. I'd like to thank
representative Anderson for sponsoring HB 427, and the
[House Judiciary Standing Committee] for hearing this
bill and [providing me with] the opportunity to voice
my support.
Number 0335
REPRESENTATIVE GRUENBERG gave an example of a case in which a
woman's former attorney had been appointed as her guardian ad
litem even though he had access to confidential information
about her and ultimately used that information against her, and
suggested that Section 6 might need to be altered to ensure that
such a person would be removed as a guardian ad litem because of
a conflict of interest.
MR. PARKER offered:
I can tell you what the thinking was behind [this
proposed] amendment [to current statute]. The statute
currently provides for the appointment of a guardian
ad litem, but that is the first thing that occurs with
the appointment of an attorney to represent the
respondent, and the attorney is to act under the
traditional attorney-client model, where the attorney
advocates for the express wishes of [his/her] client.
There has been, nationally, criticism of the
effectiveness of representation of respondents in
guardianship cases. I don't think we have a
tremendous problem here, but ... it [has] been noted
that at times there's been a tendency for attorneys,
when they are representing incapacitated persons, to
advocate, not for what the client says, but for what
they believe is in the client's best interest.
The feeling was that this statute, as it currently is
written, is not clear enough that the attorney should
act as an attorney unless it is impossible for the
attorney to ascertain, or for the client to
communicate, what their wishes or preferences or
desires are concerning the issues at stake in the
guardianship case. So the way we would hope this
would work is that a person enter an appearance as an
attorney or, more frequently, they would be appointed,
because most attorneys for respondents in guardianship
cases are appointed. When they visited with their
client, they would certainly attempt to have a
conversation about the issues at hand and what the
client's position would be. But ... I can tell you,
there are a certain number of cases where a person ...
[is] going to be nonverbal or perhaps they're in a
coma, and at that point, you simply cannot act as an
attorney in the traditional sense, where you're
advocating for your client's wishes. ...
TAPE 04-65, SIDE A
Number 0001
MR. PARKER continued:
At that point, it would be appropriate for the
attorney to request that they be treated as a guardian
ad litem, and then the statute provides guidance as to
how the analysis should take place [regarding] what
the attorney, who's acting as guardian ad litem, is
going to advocate for, and to make sure that it's not
just a matter of saying, "Well, we agree with the
visitor's report," that there is an inquiry. But the
purpose of this legislation ... is to clarify that ...
consistent with your ethical duties, you act as an
attorney representing your client's wishes despite
their incapacity. And as you know, the code of
professional responsibility mandates that ...
attorneys treat their clients, and act as attorneys to
the greatest extent possible, in the ordinary way when
they have clients with incapacities.
It should be noted that in the sanity context, when
[an] attorney is appointed to represent somebody who's
the subject of an involuntary commitment petition, the
attorney acts as an attorney and ... I've never heard
of (indisc.) to guardian ad litem. I think this
recognizes there are situations where there needs to
be a guardian ad litem appointed, but also
acknowledges that it's a slippery slope, and that
there should be more objective standards about when
you do that and it should be only when you cannot
ascertain your client's position or your client [is],
at that time, incapable of communicating [his/her]
wishes. ...
Number 0152
KENNETH C. KIRK, Attorney at Law, Kenneth Kirk & Associates,
offered to address this issue as well.
REPRESENTATIVE GRUENBERG suggested instead that the interested
parties simply consider the issue, adding that he just wants to
ensure that the court would not be able to appoint someone as a
guardian ad litem if he/she intended to use confidential
information against his/her client.
MR. KIRK offered his belief that the Alaska Rules of Evidence
would be the appropriate place to include language to that
effect. After noting that he has been involved in a lot of
conservatorship and guardianship appointments, he relayed that
he has never used guardian ad litem powers except in situations
where the client was really not able to express a preference,
for example, the client was comatose or catatonic. Short of
such an inability, he opined, a client has a constitutional
right to be represented by an attorney that will act as the
client wishes.
MR. KIRK also pointed out that Rule 1.14 of the Alaska Rules of
Professional Conduct speaks to "the decisions the attorney has
to go through, ethically, when deciding whether to ask for a
representative for the client ... in a guardianship or
conservatorship context, where perhaps the main issue of the
litigation is whether the person is competent." It would be
problematical under Rule 1.14, he opined, to turn on one's
client as portrayed in the example given earlier by
Representative Gruenberg.
Number 0362
MR. KIRK, speaking to the bill, said:
I like this bill except for one aspect and that's ...
Sections 1-4, which basically create a new regulatory
regime for guardians and conservators. It's not a bad
bill in isolation, and if we had a lot of people
clamoring for this kind of work, I think it'd be an
excellent idea. The problem is, we don't; we are very
shorthanded. ... Basically we have two people who do
private guardianship work in the greater Anchorage
area and I think one other that does conservatorship
work. ... To put up additional barriers to entry into
that field is a real problem.
These provisions are not only going to make it more
difficult for people to get into ... this thing, ...
[but] basically you have to come up with some money
and jump into it whole hog; you wouldn't be able to go
into it sort of bit by bit maybe while working at some
other job and taking a few of these cases and
eventually building up a clientele. And it applies
even if there's only one client. For example, if
[you] have somebody who needs a lot of guardianship
assistance and has a friend who's willing to do that
but the friend wants to be paid for the substantial
commitment of time, as I read the bill, that person
would have to go through and qualify as a private
guardian if he's going to [get] paid for it.
But even aside from that, I'm just really concerned
about [the fact that] we have enough trouble getting
people to do this kind of work; we already have a way
- basically [via] the probate court - to make sure
that people who are incompetent or unqualified or who
(indisc.) need other necessities - such as posting a
bond if necessary - are kept out. And so I'd really
encourage taking out Sections 1-4 and the various
other references in the other sections that are
dependent on that. Thank you.
CHAIR McGUIRE suggested that Sections 1-4 are "the crux of the
bill."
MR. FINK agreed, and said he opposes deleting Sections 1-4.
Number 0500
MR. PARKER said he disagrees with the suggestion to delete
Sections 1-4, but acknowledged that Mr. Kirk has a valid point
regarding the need for more private guardians and conservators.
He opined that Sections 1-4 are the crux of the bill and won't
place onerous burdens on private professional guardians and
conservators. He noted that proposed AS 08.26.010 says that a
person may not engage in the business of providing services as a
guardian or conservator unless the person has a license to do
so, and said he did not think that receiving free room and board
for taking care of a family member, for example, qualifies as a
business, though if more specificity is needed regarding what
constitutes a business, then that could be addressed.
REPRESENTATIVE GRUENBERG turned attention to Section 6,
subsection (c), and indicated that he still has concerns about a
person's former attorney being appointed as his/her guardian ad
litem, opining that such would be a direct conflict of interest
if the person is still able to make his/her wishes known but the
attorney didn't wish to follow those wishes as an attorney and
so sought appointment as the person's guardian ad litem. He
asked whether language precluding such ought to be added to that
provision.
MR. PARKER offered his belief that changing the standard of
appointment from "when the ward or respondent cannot determine
the ward or respondent's own interests without assistance", to
"when the [ward, protected person, or] respondent is incapable
of determining the ward's, protected person's, or respondent's
position regarding the issues involved in the pending
proceedings", will eliminate the possibility of a conflict of
interest.
MR. FINK said that if the respondent can, in any way,
communicate with his/her attorney, then the appointment of a
guardian ad litem is not appropriate, and such is the intent of
the bill.
REPRESENTATIVE GRUENBERG indicated that his concern has been
satisfied by the remarks of Mr. Fink and Mr. Parker.
Number 0845
REPRESENTATIVE SAMUELS moved to report the proposed CS for HB
427, Version 23-LS1627\I, Bannister, 4/14/04, out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, CSHB 427(JUD) was reported
from the House Judiciary Standing Committee.
The committee took an at-ease from 3:35 p.m. to 3:50 p.m.
HB 381 - CHILD ENDANGERMENT DRIVING OFFENSES
Number 0887
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 381, "An Act relating to child endangerment."
[Before the committee was CSHB 381(HES).]
CHAIR McGUIRE, sponsor, relayed that she developed HB 381 at the
request of one of her constituents, that many states already
address this issue, and that members' packets include
information put together by the National Conference of State
Legislatures outlining what the laws regarding this issue are in
other states. Currently under Alaska law, a person has to wear
a seatbelt and failure to do so results in a "secondary
offense." House Bill 381 addresses the issue of vehicular-
related child endangerment and, under current law, it is a
violation to either fail to restrain a child or improperly
restrain a child, and such a violation could result in a fine of
up to $50, she added..
Number 0993
HEATH HILYARD, Staff to Representative Lesil McGuire, Alaska
State Legislature, sponsor, noted that current law can be found
in AS 28.05.095.
CHAIR McGUIRE said that HB 381 creates a new crime for
transporting a child while being under the influence of an
intoxicant.
MR. HILYARD added that according to information he's received,
71 percent of the children who died while riding in a vehicle
driven by an intoxicated driver were not restrained, and 82
percent of children being driven by an intoxicated person are
unrestrained. He surmised that these statistics indicate that
there is "a great deal of crossover between people who commit
both of these two acts - those who drive intoxicated with a
child in the vehicle, and those who fail to properly restrain."
CHAIR McGUIRE noted that children, in most cases, don't have the
ability to make those types of choices for themselves, and
offered that HB 381 will provide penalties for driving with an
child in the vehicle while under the influence of an intoxicant.
CHAIR McGUIRE relayed that she would like to add back into HB
381 a provision that would increase the current penalties for
transporting a child that is not properly restrained when such
leads to physical injury or death of the child - this provision
had been removed in the House Health, Education and Social
Services Standing Committee.
Number 1172
CHAIR McGUIRE referred to a one-page document that contained
proposed Amendments 1-4, which read [original punctuation
provided]:
AMENDMENT 1
Page 2, Lines 8-10
After "watercraft"
DELETE "under the influence of an intoxicant."
REPLACE WITH "in violation of AS 28.35.030."
AMENDMENT 2
Page 2, after subsection [sic] (4)
INSERT "(5) transports a child in a motor vehicle in
violation of AS 25.05.095(b), and the child suffers
physical injury or dies."
AMENDMENT 3
Page 2, Lines 11-13
"Sec. 2. AS 11.51.100 is amended by adding a new
subsection:
(e) Endangering the welfare of a child in the
first degree under (a)(4) of this section is a class A
misdemeanor."
AMENDMENT 4
Page 2, Lines 14-15
Current Sec. 3 is replaced with:
"Sec. 3. AS 11.51.100 is amended by adding a new
subsection:
(f) Endangering the welfare of a child in the
first degree under (a)(5) of this section is a
(1) class C felony if the child dies;
(2) class A misdemeanor if the child suffers
serious physical injury; or
(3) class B misdemeanor if the child suffers
physical injury.
DELETE language found in current Sec. 3
Number 1203
CHAIR McGUIRE noted that Amendment 2 contains a typo and thus
the statute that should be referenced is AS 28.05.095(b), which
currently reads:
(b) Except as provided in (c) of this section, a
driver may not transport a child under the age of 16
in a motor vehicle unless the driver has provided the
required safety device and properly secured each child
as described in this subsection. If the child is less
than four years of age, the child shall be properly
secured in a child safety device meeting the standards
of the United States Department of Transportation for
a child safety device for infants. If the child is
four but not yet 16 years of age, the child shall be
properly secured in a child safety device approved for
a child of that age and size by the United States
Department of Transportation or in a safety belt,
whichever is appropriate for the particular child.
CHAIR McGUIRE explained that Amendment 2 would reinsert the
language removed by the House Health, Education and Social
Services Standing Committee creating a new crime of endangering
the welfare of a child in the first degree, and that Amendment 4
would make the crime a class C felony if the child dies, a class
A misdemeanor if the child suffers serious physical injury, and
a class B misdemeanor if the child suffers physical injury. She
noted that members' are being given a handout outlining the
current penalties and fines for the aforementioned felony and
misdemeanor convictions.
Number 1370
ALLEN STOREY, Lieutenant, Central Office, Division of Alaska
State Troopers, Department of Public Safety (DPS), said that the
DPS is in support of the provisions being discussed. He said it
is common to come upon situations involving vehicles and alcohol
wherein a child hasn't been restrained; in three such cases that
he is familiar with, the child was ejected from the car and went
sliding down the road.
Number 1416
LINDA WILSON, Deputy Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), indicated that
Amendments 1 and 3 would take care of the concerns she has with
proposed [paragraph] (4) of Section 1. With regard to
Amendments 2 and 4, she noted that concerns were raised in the
House Health, Education and Social Services Standing Committee
that there could be difficulty tracking the provisions
encompassed in Amendment 4 with the [federal] regulations that
would be referenced via Amendment 2. For example, it can be
difficult to know what the appropriate car seat is for a
particular child depending on his/her weight, height, and other
factors, particularly given that a child can grow out of one
weight/height class into another in a very short period of time
and, thus, a person could unknowingly be exposed to a criminal
penalty.
MS. WILSON opined that the proposed amendments are a real plus
to the bill, and thanked Chair McGuire for proposing those
changes. "We certainly all agree that there should be proper
support and protection for children," she added. In response to
a question, she remarked that when a mental state is not
specifically mentioned in a statute, the courts generally
construe the mens rea to be knowingly.
CHAIR McGUIRE indicated that the goal is to have this provision
apply to those who knowingly don't restrain their children
properly, and relayed that she would be willing to specify that
mental state in the bill.
LIEUTENANT STOREY relayed that earlier in the year he'd drafted
language regarding the "child restraint issue," and indicated
that he would send that language to [the committee].
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 381.
Number 1680
REPRESENTATIVE SAMUELS moved to adopt CSHB 381(HES) as the work
draft. There being no objection, CSHB 381(HES) was before the
committee.
Number 1689
CHAIR McGUIRE made a motion to adopt Amendment 1 [text provided
previously]. There being no objection, Amendment 1 was adopted.
Number 1722
CHAIR McGUIRE stated that she would like to amend Amendment 2
[text provided previously] so that it references AS
28.05.095(b). [No objection was heard and so Amendment 2 was
treated as amended.]
CHAIR McGUIRE mentioned that she would also be amenable to
changing Amendment 2 [as amended] such that it would say in part
"serious physical injury" rather than just "physical injury".
Number 1729
CHAIR McGUIRE made a motion to adopt Amendment 2 [as amended].
REPRESENTATIVE HOLM objected for the purpose of discussion. He
remarked that Ms. Wilson has a good point regarding the
difficulty of knowing what kind of restraining device one's
child should be in, because a mistake in this regard could make
someone a felon.
CHAIR McGUIRE asked Ms. Wilson whether she could suggest
language to clarify that the bill should apply to those who make
no effort at all to restrain a child, and not to those that make
a good faith effort to restrain a child.
MS. WILSON noted that AS 28.05 does reference the [U.S.]
Department of Transportation's standards for safety devices that
are required, and said that perhaps the language could be
narrowed such that it simply references safety devices. This
might avoid the debate about which safety device should have
been used, and the bill would then apply to those that use no
device whatsoever.
MR. HILYARD said that according to his understanding, in six out
of ten instances of child fatality in traffic accidents, the
children were not restrained at all. Thus, he surmised, even
restraining a child improperly will decrease the likelihood,
statistically, that he/she will die. He noted that the National
Transportation Safety Board (NTSB) recommends that states
strengthen their child restraint laws in the following ways:
require all children under the age of 4 years old to be in child
safety seats; require that 4- to 8-year-old children use auto
safety booster seats; eliminate provisions that permit children
under 8 years old to be buckled up in a seat belt; and require
all children under age 13 to ride in the back seat, if a seat is
available.
REPRESENTATIVE HOLM suggested that if Amendment 2 [as amended]
is altered such that the text being inserted reads in part,
"transports a child in a motor vehicle without restraint", it
would eliminate the issue of whether the restraint is the
appropriate one.
CHAIR McGUIRE indicated that she would be amenable to changing
the text of Amendment 2 [as amended] to read, " (5) transports
a child in a motor vehicle with no restraining device, and the
child suffers physical injury or dies."
REPRESENTATIVE HOLM mentioned that such language would be
agreeable to him.
Number 1987
REPRESENTATIVE GRUENBERG indicated that he is opposed to that
suggestion. Instead, he relayed, he would be amenable to
updating AS 28.05.095(b) such that it includes the NTSB's
recommendations. Also, he remarked, he'd like Amendment 2 [as
amended] to refer to "serious physical injury", adding that
perhaps it should also be amended to reflect that the person
"knowingly transports ...".
CHAIR McGUIRE asked Lieutenant Storey whether his aforementioned
suggested language would provide a compromise between having it
be for not restraining a child at all and having it be linked
with the federal standards currently referenced in AS
28.05.095(b).
LIEUTENANT STOREY said it seems like the sticking point on this
issue is the vagueness of AS 28.05.095(b), and posited that
perhaps his suggested language, which would update AS
28.05.095(b), might provide a solution. He again relayed that
he would provide that language to the committee. On a different
point, he said:
One of the things that occurred to me while the
discussion was going on is that we're holding the
driver responsible for it, [but] ... maybe we should
hold any ... responsible adult who's in the vehicle
responsible for ensuring that the child is restrained,
not [just] necessarily the driver.
Number 2150
REPRESENTATIVE GRUENBERG, on that point, opined that the
language is proper as is, adding:
Like the captain of a ship, the driver is responsible
for the car and the operation of the car. If somebody
else is responsible for strapping the infant in and
something happens, then technically that person would
be aiding and abetting ... - if they did it knowingly
- and ... since it's an accomplice before the fact
would be punishable as the principle. ... We should
just leave the statute alone in that area.
LIEUTENANT STOREY, in response to a question, relayed that
language he would be providing the committee references the age
and size of a child. For example: if the child is less than
one year of age and weighs less than 20 pounds, the child shall
be properly restrained in a rear-facing infant seat; if the
child is more than one year but less than four and weighs less
than 40 pounds but at least 20 pounds, the child shall be
properly restrained in a forward-facing child seat.
CHAIR McGUIRE remarked that including such criteria in HB 381
might prove controversial and asked Lieutenant Storey whether
he'd been considering adding such language to "the primary
offense seatbelt law."
LIEUTENANT STOREY said yes, adding: "We've been asked by
several organizations, police officers, and a couple of
legislators ... to look at that because it is vague and they're
having some concerns about being able to enforce that provision
because of the vagueness of it."
CHAIR McGUIRE remarked that because she is proposing to raise
the offense to a felony, she wants to be careful with how the
language is worded.
Number 2260
CHAIR McGUIRE made a motion to adopt a second amendment to
Amendment 2, as amended, to add "knowingly" before "transports".
Number 2275
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), suggested instead saying, "unless restrained by a safety
belt or another restraining device approved or adopted by the
U.S. [Department of Transportation] or the State of Alaska."
Such language would provide latitude but not allow the restraint
to be some sort of "jury-rigged thing." He opined that there
are aspects of AS 20.05.095 that are important and should thus
be referenced as well, for example, the exemption for passengers
in a school bus and the prohibition against removing the safety
belts from a vehicle.
CHAIR McGUIRE remarked that although the U.S. Department of
Transportation has developed standards, it is unclear "who gets
them" or where the general public can go to find out what they
are.
TAPE 04-65, SIDE B
Number 2374
CHAIR McGUIRE mentioned that she likes Mr. Guaneli's suggested
language and the idea of specifying "knowingly". On that point,
she mentioned that the language she is considering would be
something along the lines of: "transports a child in a motor
vehicle unless restrained by a safety belt or other child safety
device approved by the U.S. [Department of Transportation]".
REPRESENTATIVE GRUENBERG opined that "the child seatbelt law
should be in one place" and that the amendment's current
reference to AS 28.05.095(b) is fine because it could apply even
if that statute or its referenced federal standards change. He
suggested that the committee adopt the second amendment to
Amendment 2, as amended, and then adopt Amendment 2, as amended.
He also suggested, however, that AS 28.05.095(b) ought to be
updated as well.
CHAIR McGUIRE voiced her concern that attempting to change AS
28.05.095(b) [via HB 381] could bog down the bill, and suggested
that an alternative would be to forgo adopting Amendment 2, as
amended.
REPRESENTATIVE GRUENBERG suggested as another alternative that
they adopt Amendment 2 [as amended and with the second proposed
amendment to it adopted], and then alter Amendment 4 [text
provided previously] so that a violation of the language in
Amendment 2 would only result in a misdemeanor. He remarked,
however, that he likes the current concept in Amendment 4 of
making it a class C felony if a child dies because of the
violation.
MR. GUANELI suggested: "If it were made, 'unless restrained by
a safety belt or another device as required by [AS
28.05.095(b)]', that may do it, and ... I think that has the
added advantage because ..., internally, ... that references
subsection (c) of that statute, ... so you may get the benefit
of both."
REPRESENTATIVE GRUENBERG opined that such language could be read
as lowering the standard because, for example, a person could
use a regular seatbelt on a toddler. He said he'd prefer to
leave Amendment 2 [as amended and with the second proposed
amendment to it adopted] as is.
Number 2226
MS. WILSON remarked:
You also need to remember, when considering this, ...
that the person who's being charged in this particular
statute is somebody who's responsible for the child.
So it's a parent or guardian or somebody charged with
the care of the child. And so if you've got somebody
in that situation who, because they didn't put the
right seatbelt on their child, and, without any fault
of their own other than not putting them in the right
seatbelt, was hit by another car and ... and the child
dies, can you think of anything worse that would
happen? ... You had a part to play in the death of
your child - that is such a penalty in and of itself -
... and then now let's charge them with a felony. ...
REPRESENTATIVE GRUENBERG, in response to questions, offered his
belief that law enforcement can stop a person for a violation of
AS 28.05.095(b).
MS. WILSON concurred.
REPRESENTATIVE HOLM asked whether use of seatbelts would be
required in motor homes or on farm vehicles.
CHAIR McGUIRE noted that AS 28.05.095(c)(4) currently provides
an exemption for vehicles that are not equipped with seatbelts.
REPRESENTATIVE GARA added his understanding that seatbelts are
only required on public roadways.
CHAIR McGUIRE surmised that the question before the committee is
whether having a child die because he/she was transported in a
vehicle without being properly restrained should engender more
than a $50 fine.
REPRESENTATIVE GRUENBERG offered his belief that such should
result in more than a $50 fine.
CHAIR McGUIRE concurred and said she is open to suggestions
regarding what that penalty should be.
Number 2077
REPRESENTATIVE GARA said he is leaning toward the concept that
if one causes terrible injury to one's child, that is penalty
enough, but added that [he] also wants to send the message that
people need to restrain their children.
CHAIR McGUIRE pointed out that the one responsible for not
restraining a child could wind up being the babysitter, the
drunken boyfriend or girlfriend, or the neighbor.
REPRESENTATIVE GRUENBERG asked about probation.
MR. GUANELI said that generally, the Department of Corrections
(DOC) does not actively supervise anyone on misdemeanor
probation.
REPRESENTATIVE GRUENBERG said he wants to be sure that probation
becomes a part of the [sentencing] equation such that a
requirement of that probation would be that for a period of
several years, all children under the defendant's care must be
properly restrained.
CHAIR McGUIRE, noting that she is looking for broader support
down the road, suggested altering Amendment 4 such that if the
child dies, it would be a class A misdemeanor; if the child
suffers serious physical injury, it would be a class B
misdemeanor; and if the child suffers a physical injury, it
would be a class C misdemeanor.
REPRESENTATIVE SAMUELS suggested instead that Amendment 4 be
altered such that if the child dies or suffers serious physical
injury, it would be a class A misdemeanor; and if the child
suffers physical injury, it would be a class B misdemeanor.
CHAIR McGUIRE said, "Okay," adding that that would raise the
penalties while still preserving the statute that references the
federal standards.
REPRESENTATIVE GRUENBERG reiterated his preference for making it
a class C felony if the child dies.
CHAIR McGUIRE pointed out, however that if such a provision is
kept in, it would apply even in cases where the person
transporting the child got in an accident that was the fault of
the other driver.
Number 1849
REPRESENTATIVE GARA offered that sometimes there are problems
which have no legal solution, and not everything that's wrong in
society can be criminalized, and so even though he'd love to
find a way to force people to follow the seatbelt law, it may
not be possible via criminal statutes.
CHAIR McGUIRE remarked that children must rely on adults to keep
them alive and safe, and that the current $50 fine does not seem
to be a sufficient deterrent.
REPRESENTATIVE SAMUELS directed attention to page 1, line 5, and
asked who would be included under the language "or other person
legally charged with the care of a child". For example, if he
were to take a friend's child skiing, would he be considered
"legally charged with the care of a child".
CHAIR McGUIRE and REPRESENTATIVE GRUENBERG offered their belief
that that would be the case in such a situation because he was
entrusted with the care of the child by the child's parent or
guardian.
REPRESENTATIVE GRUENBERG again reiterated his preference for
making it a class C felony if the child dies, noting that
currently, if a person is guilty of negligent homicide in the
death of a child or a child dies under circumstances described
under AS 11.51.100(a)(2)(A) - wherein the parent or guardian
knowingly leaves a child with a registered sex offender - it's a
class C felony.
CHAIR McGUIRE indicated that she is hoping to achieve consensus
on this issue.
REPRESENTATIVE GRUENBERG relayed that he is satisfied with
Amendment 4 as it is currently written, and would feel bad if
the death of a child did not warrant a class C felony.
Number 1621
REPRESENTATIVE GARA said:
A fair amount of this conduct I think is covered
already, because if you ... get into a car accident
and you injure a child and the child wasn't wearing a
seatbelt, if the prosecution wants to, they can pursue
a recklessness claim. You've endangered that child:
you put a child in your car, without a seatbelt,
knowing that the reason for the seatbelt is [that] if
you get into a car accident the kid's going to get
hurt, and you got into a car accident and the kid got
hurt, lo and behold. [It's] not rocket science. It's
probably already prosecutable.
And so then the question is, why wouldn't the
[district attorney] prosecute something like that, and
I think for the same reason whether they do or they
don't is probably the same reason we're sitting here
having a hard time deciding whether or not it's a
crime. And maybe they would prosecute it in a case
where, factually, it makes sense to prosecute it, not
in the case of the grieving parent, but in the case of
the irresponsible babysitter. And so maybe the
current law gives the [district attorney] the
discretion that we want to leave. ...
MR. GUANELI relayed that the two mental states that might
possibly be applicable would be criminal negligence or
recklessness. Recklessness involves conscious awareness of a
risk and disregarding it, and criminal negligence involves
failure to perceive the risk. Both, however, have a similar
element in that they constitute a gross and unjustifiable
deviation from the standard of care that a reasonable person
would exercise. The difficulty for prosecutors, he remarked,
lies in applying that particular standard to a seatbelt
violation. Unfortunately, it's just too common a violation, he
remarked, adding his belief that most juries are not going to
find either recklessness or criminal negligence in such cases.
Therefore, in order to prosecute such cases, there must be a
specific statute that deals with the specific conduct of a
seatbelt violation and resulting injury, because, without such,
a successful conviction is unlikely.
Number 1489
MR. GUANELI, turning to the issue raised by Representative
Samuels regarding the phrase, "other person legally charged with
the care of the a child", said he is not convinced that that
language would apply to the babysitter or neighbor. Instead, he
offered, that phrase probably means a foster parent or someone
who has temporary custody short of guardianship. Therefore,
there is a potential disparity between the standard being
applied to parents, guardians, and other persons legally charged
with the care of a child, and the standard being applied to
babysitters, neighbors, and friends.
REPRESENTATIVE SAMUELS indicated a preference for having a
higher standard apply to babysitters , neighbors, and friends,
because there is nothing worse to a parent than to lose a child
and so such would be punishment enough.
REPRESENTATIVE GRUENBERG argued that because he believes
probationary restrictions should apply for several years in
cases where a child dies, the legislature should make such
instances a class C felony because felons are subject to
supervised probation.
CHAIR McGUIRE, referring to Representative Samuels point, said
she would be amenable to removing the language, ", under 16
years of age," from AS 11.51.100(a).
REPRESENTATIVE GRUENBERG cautioned against doing such, since AS
11.51.100(a) applies to circumstances other than those involving
seatbelts. He suggested instead that they consider making a
separate statute pertaining to seatbelts that would apply to all
persons, not just parents, guardians, or other persons legally
charged with the care of a child.
Number 1240
MR. GUANELI suggested that perhaps AS 11.51.100(a) could be
altered such that paragraphs (1)-(3) would apply to parents,
guardians, or other persons legally charged with the care of a
child, and proposed paragraphs (4) and (5) would apply to all
persons - all drivers. He predicted that such language could be
drafted fairly easily. On the issue of probation, he pointed
out that if the legislature says that supervised probation shall
apply in certain misdemeanor situations, the courts and the
Department of Corrections (DOC) will comply, adding that
sometimes this occurs now on a case-by-case basis in certain
misdemeanor situations when the DOC is asked by the courts to
provide supervised probation. He relayed, however, that he is
hesitant to suggest that the legislature put such a stipulation
in this statute, because it could easily become the practice to
put it in a lot of other statutes and, thus, create a burden for
the DOC.
The committee took an at-ease from 5:10 p.m. to 5:11 p.m.
CHAIR McGUIRE proposed that they adopt the second amendment -
regarding "knowingly" - to Amendment 2, as amended, [no
objection was heard and so Amendment 2, as amended, was treated
as amended in this fashion]; that they adopt Amendment 2, as
amended; that they adopt Amendments 3 [text provided previously]
and 4; and that they stipulate, as suggested by Mr. Guaneli,
that proposed paragraphs (4) and (5) apply to all persons.
CHAIR announced that the question before the committee was
whether to adopt Amendment 2, as amended.
REPRESENTATIVE HOLM removed his objection.
Number 1119
CHAIR McGUIRE asked whether there were any further [objections]
to Amendment 2, as amended. There being none, Amendment 2, as
amended, was adopted.
Number 1111
CHAIR McGUIRE made a motion to adopt Amendment 3. There being
no objection, Amendment 3 was adopted.
REPRESENTATIVE GRUENBERG, in response to a question regarding
the penalty proposed via Amendments 3 and 4, clarified that
proposed paragraph (4) pertains to transporting a child while
under the influence of an intoxicant, and proposed paragraph (5)
pertains to knowingly transporting a child without a proper
restraining device.
Number 0997
CHAIR McGUIRE made a motion to adopt Amendment 4.
Number 0970
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
He opined that it would be a good policy to stipulate supervised
probation for a violation of proposed subsection (f)(2), which
provides for a class A misdemeanor in cases where the child is
seriously physically injured. He asked whether the committee
would be amenable to that.
REPRESENTATIVE SAMUELS made mention of the fiscal notes.
MS. WILSON pointed out that if a person violates a condition of
probation for a misdemeanor crime, it would have the same effect
as violating supervised probation.
REPRESENTATIVE GRUENBERG asked whether the committee would be
amenable to passing a letter of intent encouraging probation for
violation of proposed subsection (f)(2).
REPRESENTATIVE HOLM suggested that the committee discussion
regarding the intent of HB 381 should be sufficient.
MR. GUANELI offered his belief that given the DOC's budget
situation, unless the DOC is directed to actively supervise
someone on misdemeanor probation, it won't happen.
REPRESENTATIVE GRUENBERG clarified that he is referring to
encouraging misdemeanor probation.
REPRESENTATIVE SAMUELS sought clarification from Ms. Wilson that
misdemeanor probation would have the effect that Representative
Gruenberg is seeking.
MS. WILSON said it would.
REPRESENTATIVE GRUENBERG removed his objection.
Number 0747
CHAIR McGUIRE asked whether there were any further objections to
Amendment 4. There being none, Amendment 4 was adopted.
Number 0735
CHAIR McGUIRE made a motion to adopt Conceptual Amendment 5, to
have paragraphs (1)-(3) apply to parents, guardians, or other
persons legally charged with the care of a child, and to have
proposed paragraphs (4) and (5) apply to all drivers. There
being no objection, Conceptual Amendment 5 was adopted.
Number 0680
REPRESENTATIVE HOLM moved to report CSHB 381(HES), as amended,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
381(JUD) was reported from the House Judiciary Standing
Committee.
HB 275 - VETERINARIANS AND ANIMALS
Number 0652
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 275, "An Act relating to veterinarians and
animals." [Before the committee was CSHB 275(L&C), which had
been amended on 4/7/04.]
Number 0581
SHARALYN WRIGHT, Staff to Representative Mike Chenault, Alaska
State Legislature, sponsor, indicated that she'd like the bill
to move out as is and let the House Finance Committee deal with
any further amendments.
REPRESENTATIVE GRUENBERG noted, however, that he'd been working
with Representative Crawford's office on some further proposed
amendments, and offered his belief that those proposed
amendments wouldn't be controversial.
CHAIR McGUIRE directed attention to the remainder of the changes
suggested by the Department of Law (DOL), some of which had been
adopted during the bill's hearing on 4/7/04. [These suggested
changes were presented and explained by Elise Hsieh from the DOL
during the bill's hearing on 4/6/04].
CHAIR McGUIRE - referring to the DOL's suggestion that proposed
AS 11.61.138(a)(7) be rewritten to clarify what is meant by the
phrase, "with elements similar to a crime under this section" -
indicated a preference for letting the House Finance Committee
address this suggestion.
CHAIR McGUIRE referred to the DOL's suggestion that proposed AS
11.61.138(b) is awkward and should be rewritten to say, "Each
animal that is subject to cruelty to animals under (a)(1)-(5)
and (7) of this section shall constitute a separate offense".
Number 0390
REPRESENTATIVE GRUENBERG made a motion to adopt the foregoing
suggested language as Amendment 11. There being no objection,
Amendment 11 was adopted.
Number 0339
CHAIR McGUIRE made a motion to adopt Amendment 12, which was
labeled 23-LS0940\U.1, Luckhaupt, 4/7/04, and read:
Page 6, line 29:
Delete "a new paragraph"
Insert "new paragraphs"
Page 7, line 1, following "AS 11.61.140":
Insert ";
(32) the defendant is convicted of an
offense specified in AS 11.46.360 or 11.46.365 and an
animal was present in the propelled vehicle at the
time of the offense; in this paragraph, "animal" has
the meaning given in AS 11.61.140"
CHAIR McGUIRE noted that Amendment 12 would add an additional
aggravator to Section 4, which pertains to the statute regarding
aggravating and mitigating factors in sentencing. This
aggravator would apply for crimes of vehicle theft in the first
or second degree. She noted that she and her committee aide,
Vanessa Tondini, had their dogs taken when Ms. Tondini and her
mother had their car carjacked.
MS. WRIGHT pointed out that if such a situation involved a
service dog, it would be an even more serious crime than just
having one's pet taken away.
Number 0210
CHAIR McGUIRE asked whether there were any objections to
Amendment 12. There being none, Amendment 12 was adopted.
The committee took an at-ease from 5:28 p.m. to 5:29 p.m.
Number 0102
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 13,
which, with a handwritten correction, read [original punctuation
provided]:
Page 4, lines 27 - 28:
Delete all material and insert
"(5) with criminal negligence fails to care
for an animal and, as a result, causes the death of
the animal or causes severe physical pain or prolonged
suffering to the animal;"
Page 5, after line 12:
Insert the following:
"(e) In (a)(5) of this section, failure to
provide the minimum standards of care for an animal
under AS 03.55.100 is prima facie evidence of failure
to care for an animal."
Renumber remaining subsections accordingly.
Number 0089
REPRESENTATIVE HOLM objected
Number 0081
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), said that whenever there are laws that create civil
penalties on the one hand and related criminal penalties on the
other hand, there is often a tension between the two; the kinds
of standards that could be applied to civil penalties sometimes
don't work well in the criminal context because the standards
for vagueness and ambiguity are much stricter for the latter.
TAPE 04-66, SIDE A
Number 0001
MR. GUANELI relayed that the first part of Amendment 13, which
was created by the DOL, proposes to keep the language that is in
current law because it doesn't refer to the civil standards
regarding minimum standards of care. With regard to the second
part of Amendment 13, he indicated that one of the problems
facing prosecutors is, what does "fails to care" mean and how is
that to be assessed by a jury, and so the DOL's suggested
solution is a provision pertaining to prima facie evidence, that
if someone fails to provide the minimum standards of care as set
out in the civil statutes, that constitutes prima facie evidence
of failure to care for the animal. This will give guidance to
the jury without having those standards written into the
elements of the criminal offense. He noted that there is a
similar provision regarding prima facie evidence on page 6,
lines 13-15, and opined that such provisions are more workable
from a criminal prosecution standpoint.
MS. WRIGHT expressed concern with the first part of Amendment 13
because it removes reference to minimum standards of care,
which, she opined, can only be defined by a veterinarian. She
also opined that using the phrase "criminal negligence" removes
any standard of care for an animal.
REPRESENTATIVE GRUENBERG mentioned that Amendment 13 looks like
a good amendment to him.
CHAIR McGUIRE opined that Mr. Guaneli is correct in that if
certain actions are going to made a crime, they need to be
careful about what the standards are going to be. She offered
her belief that application of a civil standard probably won't
be upheld.
REPRESENTATIVE HOLM said he disagrees with this kind of a bill
because animal cruelty does not rise to the level of cruelty
against humans. He mentioned that what is meant by the phrase
"minimum standard of care" will vary depending on the area of
the state and the type of animal. He questioned whether
allowing buffalo to roam free in the Fairbanks area, for
example, would rise to the level of criminal negligence. He
relayed that at one point, animal control personnel rounded up
some range-fed horses because they appeared to be too thin; when
the veterinarian looked at those horses, he deemed them healthy
and appropriately thin given that they were range-fed horses.
He said he agrees that it should be the veterinarian who
determines what the standards of care should be.
Number 0509
CHAIR McGUIRE offered her belief that Amendment 13 would satisfy
Representative Holm's concerns because it ensures that before
someone is charged with a crime, the behavior has to rise to a
higher level, that of criminal negligence.
REPRESENTATIVE HOLM opined, however, that the phrase "fails to
care" is subjective.
REPRESENTATIVE GRUENBERG surmised that that is simply a term of
art. He also pointed out that the phrase "fails to care for an
animal" in the first part of Amendment 13 is linked with the
phrase "failure to provide the minimum standards of care" in the
second part, which directly references those standards as they
are set out in Section 1 of the bill, under proposed AS
03.55.100. He opined that under Amendment 13, in order to make
a criminal case, the prosecution will have to present objective
evidence from a veterinarian as stipulated in Section 1,
subsection (b).
CHAIR McGUIRE opined that Amendment 13 will make the bill
better.
MR. GUANELI, in an effort to alleviate Representative Holm's
concern regarding the phrase "fails to care", reiterated that
that language is part of existing law, and offered his belief
that the second part of Amendment 13 gives guidance regarding
the standards of care that are set out in the rest of the bill.
He relayed that the current language in the bill would repeal
current law and make violation of the minimum standards a crime
even if the animal is not in pain, injured, or suffering in any
way.
MS. WRIGHT said she is not comfortable with Amendment 13 and
would like more time to consider it.
CHAIR McGUIRE said she would feel more comfortable with HB 275
if Amendment 13 is included in it, because she thinks that Mr.
Guaneli has made good points.
Number 0917
REPRESENTATIVE MIKE CHENAULT, Alaska State Legislature, sponsor,
expressed concern that it might be more difficult to prove that
someone actually intended to treat an animal a certain way
versus just letting a situation develop.
MR. GUANELI, in response to comments about prima facie evidence,
said:
Prima facie evidence probably means a lot of different
things in a lot of contexts, but what it would
certainly mean in the first instance for investigators
is that if they determine that prima facie exists - in
other words, that the minimum standards have been
violated - that gives them the authority to take some
action based on that. In other words, ... but for
other things, they can assume that ... there's been a
violation of law because, prima facie, this
constitutes evidence of that.
So I think the police could seize the animals or ...
do those kinds of things that are necessary to protect
the animals. I think that a prosecutor could then
..., in good faith, file charges based on that. When
it comes to the jury, though, the jury ... would be
instructed by the judge that it may rely on those
standards [but] it is not required to; in other words,
the jury isn't forced to rely on those standards, but
those are things that the jury can take into
consideration to determine whether the other elements
of the crime have been met. ...
REPRESENTATIVE GRUENBERG offered his belief that adoption of
Amendment 13 would enable the prosecution to get a motion to
dismiss for failure to make out a case denied.
REPRESENTATIVE HOLM removed his objection.
REPRESENTATIVE CHENAULT said he has no objection to Amendment
13.
Number 1123
CHAIR McGUIRE asked whether there were any further objections to
adopting Amendment 13. There being none, Amendment 13 was
adopted.
REPRESENTATIVE GRUENBERG relayed that he had two more proposed
amendments that he wished to discuss, adding his belief that
they went together.
Number 1162
JOE McKINNON, Staff to Representative Max Gruenberg, Alaska
State Legislature, referred to Amendment 14, which read
[original punctuation provided]:
Page 3, line 10: Amend subsection (d) as follows:
(d) The state, a municipality, a person, or
another entity that supplies shelter, care, veterinary
attention or medical treatment for an animal seized
under this section shall [MAKE EVERY REASONABLE EFFORT
TO LOCATE THE OWNER] have a lien on the animal for the
cost of shelter, care, veterinary attention, or
medical treatment.
MR. McKINNON explained that Amendment 14 came from
Representative Crawford's office, and that in part its intent is
to delete the language "make every reasonable effort to locate
the owner" because it was felt that that burden should not be on
the person or entity that is simply caring for the animal. And
presumably, he remarked, law enforcement will already be making
an effort to locate the owner. Amendment 14 also adds language
regarding having a lien for the costs of providing care for the
animal. He noted that there have been instances wherein humane
groups have spent a significant amount of money caring for the
abused animals placed in their care but not received any
compensation from the owner. Currently, there is no clear
authority for such an entity to assert a claim for any of the
costs of caring for an animal.
Number 1238
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 14.
MR. McKINNON referred to Amendment 15, which read [original
punctuation provided]:
Page 5, Line 2: Insert new bill section 5 and renumber
bill sections accordingly:
Sec. 5. AS 34.35.220 is amended to read:
Sec. 34.35.220. Persons entitled to carrier,
warehouse, [AND] livestock and animal liens. The
following persons shall have liens upon personal
property for their just and reasonable charges for the
labor, care, and attention bestowed and the food
furnished, and may retain possession of the property
until the charges are paid:
(1) a person who is a common carrier, or who, at
the request of the owner or lawful possessor of
personal property, carries, conveys, or transports the
property from one place to another;
(2) a person who safely keeps or stores grain,
wares, merchandise, and personal property at the
request of the owner or lawful possessor of the
property; [AND]
(3) a person who pastures or feeds horses,
cattle, hogs, sheep, or other livestock, or bestows
labor, care, or attention upon the livestock at the
request of the owner or lawful possessor of the
livestock; and
(4) the state, a municipality or another person
who provides feed, shelter, care, veterinary attention
or medical treatment to an animal seized pursuant to
AS 03.55.120.
MR. McKINNON pointed out that if the committee adopts Amendment
15, then Amendment 14 should be changed such that, "have a lien
on the animal for the cost of shelter, care, veterinary
attention, or medical treatment" should be changed to read,
"have a lien under AS 34.35.220".
Number 1301
REPRESENTATIVE GRUENBERG made a motion to amend Amendment 14 to
that effect.
Number 1328
CHAIR McGUIRE asked whether there were any objections to the
amendment to Amendment 14. There being none, Amendment 14 was
amended.
Number 1340
CHAIR McGUIRE asked whether there were any objections to
Amendment 14, as amended. There being none, Amendment 14, as
amended, was adopted.
Number 1345
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 15.
REPRESENTATIVE HOLM objected, and asked what happens if someone
were to be accused but ultimately not convicted.
REPRESENTATIVE GRUENBERG said that the lien is for the cost of
care regardless of whether the person is convicted.
REPRESENTATIVE HOLM opined, however, that if the owner is not
convicted, the animal, in essence, was seized without his/her
permission and therefore he/she should not be liable for the
cost of that care.
MS. WRIGHT suggested that instead of using a lien system, the
person or entity that incurs costs for providing care can still
file a suit to recover those costs.
Number 1526
REPRESENTATIVE GRUENBERG withdrew Amendment 15, and made a
motion that the committee rescind its action in adopting
Amendment 14, as amended. There being no objection, the
committee rescinded its action in adopting Amendment 14, as
amended.
Number 1553
REPRESENTATIVE GRUENBERG moved to report CSHB 275(L&C), as
amended, out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, CSHB
275(JUD) was reported from the House Judiciary Standing
Committee.
ADJOURNMENT
Number 1557
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 6:00 p.m.
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