Legislature(1999 - 2000)

04/07/1999 01:27 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                                                                                
HB 57 - STATE & MUNI IMMUNITY FOR Y2K                                                                                           
                                                                                                                                
CHAIRMAN KOTT announced the next order of business is HB 57, "An                                                                
Act relating to immunity for certain claims against the state, a                                                                
municipality, or agents, officers, or employees of either, arising                                                              
out of or in connection with the year 2000 date change; and                                                                     
providing for an effective date."                                                                                               
                                                                                                                                
Number 0830                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES made a motion to rescind the action of passing                                                             
HB 57 from the committee earlier.  There being no objection, it was                                                             
so moved.                                                                                                                       
                                                                                                                                
Number 0847                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES made a motion to adopt the committee                                                                       
substitute for HB 57, 1-GH1005\D.  There being no objection, it was                                                             
so moved.                                                                                                                       
                                                                                                                                
Number 0886                                                                                                                     
                                                                                                                                
CORY WINCHELL, Administrative Assistant to Representative Pete                                                                  
Kott, Alaska State Legislature, noted that the word "not" was not                                                               
included on page 3, lines 8-10.  As a result, the immunity                                                                      
described in this section would apply if clear and convincing                                                                   
evidence is shown.  Originally, the committee wanted to show that                                                               
the immunity would not apply if clear and convincing evidence is                                                                
shown.                                                                                                                          
                                                                                                                                
CHAIRMAN KOTT noted that is what "some" of the committee members                                                                
wanted to show.                                                                                                                 
                                                                                                                                
Number 0960                                                                                                                     
                                                                                                                                
GAIL VOIGTLANDER, Assistant Attorney General, Special Litigation                                                                
Section, Civil Division, Department of Law, testified via                                                                       
teleconference from Anchorage.  She stated, if the intent is to                                                                 
make this an immunity to avoid a lawsuit, a definition of the                                                                   
phrase, "good faith efforts", would be appropriate.                                                                             
                                                                                                                                
Number 1018                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked Ms. Voigtlander whether simply                                                                       
establishing a definition would remove the problem of going through                                                             
a trial for a factual determination.                                                                                            
                                                                                                                                
MS. VOIGTLANDER replied it would help if it was crafted in a way                                                                
that there wouldn't be an issue of fitting the conduct within the                                                               
definition.  The problem is getting everybody to "read off the same                                                             
page" in terms of the facts and what they mean.  It is more often                                                               
the case that a trial judge is unable to resolve any factual issues                                                             
and, therefore, it has to go to trial to be resolved.                                                                           
                                                                                                                                
Number 1084                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked Ms. Voigtlander, even with a definition,                                                             
whether the state would still have to go through the riggers of a                                                               
trial each time something like this came up to determine whether                                                                
there were good faith efforts.                                                                                                  
                                                                                                                                
MS. VOIGTLANDER replied findings would be made at the trial court                                                               
level, presumably the superior court level.  And, under the laws of                                                             
the state one superior court does not have to follow another                                                                    
superior court's findings or rulings if the parties are not the                                                                 
same.  Superior court is bound only be appellate case law as                                                                    
controlling.  In addition, depending on the claim the facts might                                                               
change.                                                                                                                         
                                                                                                                                
Number 1185                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT announced there are three amendments and labeled them                                                             
as "Amendment 6", "Amendment 7", and "Amendment 8".                                                                             
                                                                                                                                
Number 1292                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG spoke to Amendment 6 before adopting it.                                                                
It reads as follows:                                                                                                            
                                                                                                                                
     Page 3, lines 8-10:                                                                                                        
                                                                                                                                
          Delete "The immunity described in this subsection applies                                                             
          only if the affected party shows by clear and convincing                                                              
          evidence that the state did not use good faith efforts to                                                             
          avoid the failure that caused the damages in the civil                                                                
          action."                                                                                                              
                                                                                                                                
REPRESENTATIVE ROKEBERG explained Amendment 6 fundamentally takes                                                               
away the defense of the state against any year 2000 (Y2K) action.                                                               
This bill doesn't have the criteria as set out in HB 82, and                                                                    
without that language it does severe harm to the intent of the bill                                                             
and the desire of the Administration to have immunity for the                                                                   
state.  The amendment may leave the municipal governments below the                                                             
state level still liable, however.                                                                                              
                                                                                                                                
Number 1458                                                                                                                     
                                                                                                                                
MS. VOIGTLANDER asked whether there is a parallel change to AS                                                                  
09.65.070.                                                                                                                      
                                                                                                                                
CHAIRMAN KOTT AND REPRESENTATIVE ROKEBERG replied no                                                                            
simultaneously.                                                                                                                 
                                                                                                                                
REPRESENTATIVE ROKEBERG said he's not sure where it would fit into                                                              
AS 09.65.070 precisely.                                                                                                         
                                                                                                                                
Number 1497                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT stated, if Representative Rokeberg is trying                                                               
to make a distinction between the state and municipality, then                                                                  
there would need to be a technical change on page 4 for it to make                                                              
sense.                                                                                                                          
                                                                                                                                
REPRESENTATIVE ROKEBERG said that is a separate issue, and                                                                      
suggested discussing each one separately.                                                                                       
                                                                                                                                
REPRESENTATIVE CROFT said it would be easier to clean up the                                                                    
language then debate it.  Amendment 8 would get the bill to where                                                               
the committee intended it to be.                                                                                                
                                                                                                                                
Number 1595                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN said either one of the amendments would still                                                              
have the problem of good faith efforts.  The state or a                                                                         
municipality would still be subject to a full trial each time an                                                                
issue came up.  It and would open it up for lawyers to have a "good                                                             
time."                                                                                                                          
                                                                                                                                
Number 1650                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG said the state justifiably deserves                                                                     
immunity because it is making good faith efforts to try to resolve                                                              
the problem.  He cannot say that, however, for the local level                                                                  
governments.  If blanket immunity is granted to them, there is no                                                               
incentive to take corrective actions.  "Therefore, if you wish to                                                               
have the standard where there is the right to claim, it should not                                                              
be against the state, but it should be against the local level                                                                  
government where they should have--should have to prove their good                                                              
faith effort to do this.  Whereas, we already know the state is                                                                 
already doing a good faith effort.  And, if they're not, that's the                                                             
legislature's fault for not giving them enough money."                                                                          
                                                                                                                                
Number 1750                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN retracted his comments on Amendment 6.  He                                                                 
misread it.                                                                                                                     
                                                                                                                                
Number 1778                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to move Amendment 6                                                                       
(1-GH1005\D.1, Ford, 3/23/99).                                                                                                  
                                                                                                                                
REPRESENTATIVE CROFT objected.  It comes back to the fundamental                                                                
issue of what it takes to get action.  In this society, it takes                                                                
responsibility to get action, and the state is absolving itself of                                                              
responsibility here.  The reason for getting action is because of                                                               
the potential liability.  Mr. Poe [Commissioner, Department of                                                                  
Administration] testified that the money he has used came from the                                                              
Risk Management Fund.  If there is no risk, he could not have used                                                              
that money.  It is the risk of somebody holding the state                                                                       
responsible for its actions that caused the state to act                                                                        
responsibly.  The efforts that the state has made so far have met                                                               
the good faith standard, but there are still eight months to go,                                                                
and this is a license to stop.  He predicts that the state's                                                                    
efforts will not be as substantial with this amendment.                                                                         
                                                                                                                                
Number 1944                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI said she wishes that there is a way to                                                                 
define the phrase, "good faith efforts", as the committee is trying                                                             
to do in HB 82.                                                                                                                 
                                                                                                                                
Number 2048                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA said that deleting this section opens up                                                                
the dilemma of intentional misconduct.  If that is the way the                                                                  
committee goes then she has other amendments that will be necessary                                                             
to protect against things like that.                                                                                            
                                                                                                                                
Number 2076                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES she has a problem hearing that efforts will be                                                             
stopped because of immunity.  If the legislature wasn't in control                                                              
and there wasn't interest from the Administration, that might be                                                                
fair to say.  However, there ought to be immunity in this case                                                                  
because she believes that the state is making a good faith effort,                                                              
otherwise "you have to go to court to show why you should."  It's                                                               
the going to court that is expensive and she wants to avoid that.                                                               
                                                                                                                                
Number 2156                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked whether there is the possibility of                                                                  
handling this administratively rather than going to court over and                                                              
over again.                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT replied there is always that possibility, but it                                                                  
might happen too often.                                                                                                         
                                                                                                                                
REPRESENTATIVE GREEN replied it would have to be a rare case, but                                                               
at least "you wouldn't be subjecting yourself to constant court                                                                 
actions."                                                                                                                       
                                                                                                                                
CHAIRMAN KOTT called for a roll call vote.  Representatives Green,                                                              
Rokeberg, James and Kott voted in favor of the motion.                                                                          
Representatives Murkowski, Croft and Kerttula voted against the                                                                 
motion.  The motion passed by a vote of 4-3.                                                                                    
                                                                                                                                
Number 2270                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to move Amendment 7                                                                       
(1-LG1005\D.2, Ford, 3/24/99).  It reads as follows:                                                                            
                                                                                                                                
     Page 1, line 3, following "change;":                                                                                       
                                                                                                                                
          Insert "amending Rule 23, Alaska Rules of Civil                                                                       
          Procedure;"                                                                                                           
                                                                                                                                
     Page 3, following line 10:                                                                                                 
                                                                                                                                
          Insert a new subsection to read:                                                                                      
                                                                                                                                
               "(b) A civil action brought against the state, or                                                                
               against an agent, officer, or employee of the                                                                    
               state, for damages arising from the year 2000 date                                                               
               change and not precluded by (a) of this section may                                                              
               not be brought as a class action unless each member                                                              
               of the class has a claim for economic loss that                                                                  
               exceeds $50,000."                                                                                                
                                                                                                                                
     Reletter the following subsections accordingly.                                                                            
                                                                                                                                
     Page 5, following line 16:                                                                                                 
                                                                                                                                
          Insert a new bill section to read:                                                                                    
               (f) A civil action brought a municipality or                                                                     
               against an agent, officer, or employee of the a                                                                  
               municipality, for damages arising from the year                                                                  
               2000 date change and not precluded by (d)(7) of                                                                  
               this section may not be brought as a class action                                                                
               unless each member of the class has a claim for                                                                  
               economic loss that exceeds $50,000."                                                                             
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 5, lines 17-18:                                                                                                       
                                                                                                                                
          Delete "09.65.070(e)(4) and 09.65.070(e)(5)"                                                                          
          Insert "09.65.070(e)(4), 09.65.070(e)(5), and                                                                         
          09.65.070(f)"                                                                                                         
                                                                                                                                
     Page 5, following line 18:                                                                                                 
                                                                                                                                
          Insert a new bill section to read:                                                                                    
          "* Sec. 7. AS 09.65.255(b), enacted by sec. 2 of this                                                                 
          Act, and AS 09.65.070(f), enacted by sec. 5 of this Act,                                                              
          have the effect of amending Rule 23, Alaska Rules of                                                                  
          Civil Procedure, by requiring, in certain class actions                                                               
          relating to the year 2000 date change, that each member                                                               
          of the class have a claim for economic loss that exceeds                                                              
          $50,000."                                                                                                             
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
REPRESENTATIVE CROFT objected.                                                                                                  
                                                                                                                                
REPRESENTATIVE ROKEBERG explained Amendment 7 says that, if there                                                               
is any civil action taken against the state or a municipality,                                                                  
economic losses would have to exceed $50,000 for a class action.                                                                
The idea is to limit vexatious litigation for relatively minor                                                                  
amounts of money.  It is similar to language in the private sector                                                              
Y2K bill.  He noted that this doesn't preclude a class action.                                                                  
                                                                                                                                
Number 2425                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT stated he is not sure whether the amendment to                                                             
Page 3 is needed at all since the state now has complete immunity.                                                              
The amendment to Page 5 is poor public policy.  It mirrors only one                                                             
section of the private sector Y2K bill...                                                                                       
                                                                                                                                
TAPE 99-23, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG said Representative Croft may have a point.                                                             
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to amend Amendment 7 to                                                                   
delete lines 3-8 of the amendment [Page 3, following line 10:].                                                                 
                                                                                                                                
Number 0084                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI noted that she has a copy of HB 82 and it                                                              
is basically the same provision.                                                                                                
                                                                                                                                
REPRESENTATIVE ROKEBERG said the issue on amending Amendment 7 is                                                               
that if there is blanket immunity for the state a provision for a                                                               
class action limitation is not needed.  It is redundant.                                                                        
                                                                                                                                
CHAIRMAN KOTT agreed.                                                                                                           
                                                                                                                                
REPRESENTATIVE CROFT noted it is a good amendment to Amendment 7;                                                               
it just doesn't go far enough.                                                                                                  
                                                                                                                                
CHAIRMAN KOTT asked whether there is any objection to the motion to                                                             
amend Amendment 7.  There being none, it was so moved.                                                                          
                                                                                                                                
REPRESENTATIVE JAMES asked Representative Rokeberg to explain the                                                               
changes to Page 5, lines 17-18 of Amendment 7, as amended.                                                                      
                                                                                                                                
REPRESENTATIVE ROKEBERG replied it has to deal with the automatic                                                               
repealers.                                                                                                                      
                                                                                                                                
Number 0284                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked Representative Rokeberg to explain the changes                                                              
to Page 5, following line 18 of Amendment 7, as amended.                                                                        
                                                                                                                                
REPRESENTATIVE ROKEBERG replied it is a court rule change reflected                                                             
in the change to the title.                                                                                                     
                                                                                                                                
Number 0456                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT said, "If we're going to mirror...Now that                                                                 
we've modified it--if we're going to mirror the provisions of the                                                               
private immunity bill, Y2K immunity bill, in this respect, then it                                                              
seems to me that we ought to in the respective liability...That if                                                              
we took a fair amount of care to list a way that you could--steps                                                               
that you could take to get out of liability, or more general if you                                                             
wanted that.  And, we took a fair amount of this committee's time                                                               
trying to craft that just right.  And, if it's 'good for the goose,                                                             
it should be good for the gander.'  So, if we're gonna treat                                                                    
private entities with that level of immunity, a schedule of                                                                     
immunity or an option for a margin of error, I wouldn't have any                                                                
objection to this mirroring provision, if we then go ahead and put                                                              
the same sort of language from the private into the governmental.                                                               
If we're not going to, and staff is passing around the new version                                                              
of HB 82 that has that language, if we're not going to put that                                                                 
level or that description of that specificity of liability than I'm                                                             
will object to this.  Not knowing, what the committee's wish is,                                                                
I'll maintain this objection.  If we had some sense that we were                                                                
trying--gonna mirror what we're doing--asking the private sector to                                                             
do, that would be something different."                                                                                         
                                                                                                                                
Number 0564                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG said he doesn't have an objection to that                                                               
conceptually.  He objects to cleaning up the Governor's bill.  He                                                               
can't find fault with Representative Croft's logic.                                                                             
                                                                                                                                
CHAIRMAN KOTT asked Representative Rokeberg to withdrawal his                                                                   
motion on Amendment 7, as amended, for public testimony.  It is the                                                             
intent to hold the bill over to clean it up.                                                                                    
                                                                                                                                
Number 0651                                                                                                                     
                                                                                                                                
KEVIN SMITH, Risk Manager, Alaska Municipal League, Joint Insurance                                                             
Association, Incorporated, testified in Juneau.  As Representative                                                              
Croft pointed out, "What's sauce for the goose is sauce for the                                                                 
gander."  He feels that all the arguments applied towards Amendment                                                             
6 for the state could be extended to municipalities.  Public                                                                    
resources would be more wisely spent solving the problem as opposed                                                             
to being spent on a defense to court.  There are a whole bunch more                                                             
targets in the municipal arena than the state arena.  As a result,                                                              
the problems are larger in terms of a defense.  He encouraged the                                                               
committee members to consider applying the same standards to the                                                                
municipalities.                                                                                                                 
                                                                                                                                
Number 0724                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG said the reason for the distinction and                                                                 
concern is for the municipalities that haven't undertaken                                                                       
compliance programs.  He agrees with Mr. Smith in terms of avoiding                                                             
litigation and focusing on compliance.  He thinks that the                                                                      
committee's intention of setting up a defense for good faith                                                                    
standards would be available to those governments that take the                                                                 
actions.  He is concerned because he knows what the state is doing,                                                             
but he doesn't know what every municipal government is doing in the                                                             
state.                                                                                                                          
                                                                                                                                
Number 0786                                                                                                                     
                                                                                                                                
MR. SMITH said the incentive is the same for the local government                                                               
leaders as it is for the legislators which is being responsible to                                                              
constituents.  There is an incentive for the governments to do what                                                             
they are suppose to without having to be driven by the court                                                                    
system.  He wondered whether showing a demonstration of the efforts                                                             
being taken would go towards helping to apply Amendment 6 to                                                                    
municipalities.                                                                                                                 
                                                                                                                                
Number 0826                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG said the (indisc.--coughing) is looking at                                                              
setting up a definition of "good faith efforts" in the bill.                                                                    
Therefore, each municipal government would have to meet that                                                                    
standard in order to assert a defense.  He thinks that is the fair                                                              
way to do it.  The committee and legislature do not know what each                                                              
local government is doing or not doing.  He said, "Mr. Smith you                                                                
can't warrant to this committee that every municipal government or                                                              
school district in the state is doing the right thing right now.                                                                
Can you?"                                                                                                                       
                                                                                                                                
MR. SMITH replied naturally he cannot do that.  But, by the same                                                                
token, even if a good faith standard is written out there would                                                                 
still be a question of fact before a trial incurring defense costs                                                              
which takes public dollars - dollars that could be used to replace                                                              
municipal assistance and revenue sharing, for example.                                                                          
                                                                                                                                
Number 0907                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG said in HB 82 there are other forms of                                                                  
remediation.  In regards to Mr. Smith's comments on municipal                                                                   
assistance and revenue sharing being held up, he would be happy to                                                              
apply Amendment 6 to municipalities.  It's up to the committee.                                                                 
He's happy either way.                                                                                                          
                                                                                                                                
Number 0928                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT indicated the bill will be held over and hopefully                                                                
taken up again tomorrow [April 8, 1999].                                                                                        

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