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