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