Legislature(1999 - 2000)
04/09/1999 01:05 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 57 - STATE & MUNI IMMUNITY FOR Y2K
CHAIRMAN KOTT announced the first 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."
CHAIRMAN KOTT indicated there is a committee substitute for HB 57
[1-GH1005\G, Ford, 4/8/99].
CHAIRMAN KOTT noted that Gail Voigtlander from the Department of
Law is on the teleconference network. He asked her to comment on
the committee substitute.
Number 0184
GAIL VOIGTLANDER, Assistant Attorney General, Special Litigation
Section, Civil Division, Department of Law testified via
teleconference from Anchorage. The committee substitute changes
the state back to immunity without a qualifier, a concept brought
in from HB 82. Her only comment is that this would make summary
disposition difficult. If there are issues of fact involved, under
Alaska law, they are not susceptible to summary adjudication.
Number 0415
CHAIRMAN KOTT referred to a memorandum dated April 9, 1999 from
Michael F. Ford [Legislative Legal and Research Services,
Legislative Affairs Agency] to Representative Pete Kott, and stated
it is the opinion of Mr. Ford that regional educational attendance
areas (REAA'S) are under the definition of the term "state". They
would, therefore, have blanket immunity. He asked Representative
Rokeberg whether that addresses his concern.
Number 0457
REPRESENTATIVE ROKEBERG replied it is helpful, but it depends on
how the totality of the bill ends up.
Number 0539
REPRESENTATIVE CROFT said he is fine with making the legal opinion
of Mr. Ford as part of the record. He had a case that went all the
way to the Ninth Circuit Court of Appeals and lost on the issue of
whether REAA'S are an instrumentality of the state for the purposes
of a federal statute. It is really not as clean as the memorandum
suggests, but if the statute is clear, in this case, it is
sufficient.
CHAIRMAN KOTT said it is crystal clear in the memorandum that
REAA'S are considered part of the term "state" as an
instrumentality of it.
Number 0609
REPRESENTATIVE GREEN made a motion to offer Amendment 8. It reads
as follows:
Page 3, line 9, following "others"
Insert: "The immunity provided in this section applies
unless 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 claimed in the
civil action. As used in this section, the state
establishes its good faith efforts as a matter of law if
it has made efforts to identify, test, and develop
contingency plans for critical systems."
Page 4, line 23, following "municipality"
Insert: "The immunity provided in this section applies
unless the affected party shows by clear and convincing
evidence that the municipality did not use good faith
efforts to avoid the failure that caused the damages
claimed in the civil action. As used in this section,
the municipality establishes its good faith efforts as a
matter of law if it has made efforts to identify, test,
and develop contingency plans for critical systems."
REPRESENTATIVE ROKEBERG objected.
REPRESENTATIVE GREEN noted that there is an error to the page 4
portion of the amendment. It should read, "Page 4, line 29,
following 'law'". In addition, all material through page 5, line
21, to the end of the sentence should be deleted after the word
"law". The amendment would in effect give a municipality the same
sort of immunity as the state, if it shows the same sort of
reasonable actions.
Number 0919
REPRESENTATIVE GREEN made a motion to amend Amendment 8.
REPRESENTATIVE KERTTULA noted an error to the page 3 portion of the
amendment. It should read, "Page 3, line 9, following 'others'".
CHAIRMAN KOTT asked whether there is any objection to amending
Amendment 8. There being no objection, it was so moved.
Number 0981
REPRESENTATIVE GREEN said Amendment 8, as amended, removes a litany
of things that aren't necessary. Lists, in general, are not a good
idea because something usually will be omitted creating a loophole.
By going back to the original intent of reasonable efforts, the
state would be immune from litigation and the onus would be put on
the person claiming the damages. That same immunity would also
prevail to municipalities because of the discussion on the
unfairness of providing immunity for the state, but not for the
municipalities.
Number 1091
REPRESENTATIVE ROKEBERG noted that the intent of the language in HB
82 is not to be specific as to the performance of a particular
element in the list. Amendment 8, as amended, is more specific by
calling for the identification, testing, and development of
contingency plans for critical systems. It also sets up a
different standard of showing clear and convincing evidence. He
wants to divide the question. The state is already in progress.
It obviates the need, otherwise it could generate lawsuits.
Number 1217
BRAD THOMPSON, Director, Division of Risk Management, Department of
Administration, testified in Juneau. There has been a lot of
testimony on the need for a clean and efficient method for the
state or a municipality to extricate itself from litigation
cost-effectively. It is an issue of making it a matter of law by
showing the efforts set forth. The inequity argument between the
state and a municipality is for the legislature to consider.
Number 1312
REPRESENTATIVE KERTTULA said the amendment comes closer to
requiring clear and convincing evidence. It also makes it a matter
of law, if the state or a municipality shows efforts. She asked
Ms. Voigtlander whether she is more comfortable with that standard.
Number 1338
MS. VOIGTLANDER replied, obviously, no qualification is the first
preference, but it addresses virtuous claims in a form more
consistent with immunity laws. That being, testing the immunity
early on without having to go to discovery or preparing and
presenting a jury trial. The amendment provides for clear and
convincing evidence, which is a higher standard than preponderance
of evidence. It also provides that the state or a municipality
establishes good faith efforts as a matter of law. If adopted, the
legislative history would show that it would be accomplished
summarily with a summary judgment rather than having to go to
trial.
Number 1425
REPRESENTATIVE ROKEBERG made a motion to divide the question
between Page 3, line 9; and Page 4, line 29.
REPRESENTATIVE CROFT objected. The same standards should apply to
the state and the municipalities for the reasons that the committee
members have discussed: "What's good for the goose is good for the
gander."
CHAIRMAN KOTT called for a roll call vote. Representatives
Rokeberg and Kott voted in favor of the motion. Representatives
Green, Murkowski, Croft and Kerttula voted against the motion. The
motion failed by a vote of 2-4.
Number 1507
REPRESENTATIVE ROKEBERG said, given the testimony today, he
believes that the state and Administration prefers a clean immunity
by making a distinction between the matters of fact and law which
is why he wanted to divide the question. On the other hand, he can
support it, if the committee wishes, because it makes a different
type of standard for municipal governments than what would be
applicable in HB 82 for the private sector.
Number 1570
REPRESENTATIVE KERTTULA said, "You want this to be a question of
law, if you're going to do anything with the state because you
don't want to have to go to jury. So, whether or not the
government can prove it as a matter of fact, technically what you
want to do is prove it as a matter of law. And, you want to allow
the state to come in without having to go through lengthy
discovery, which is what Ms. Voigtlander was describing and why the
costs go up so hard. And, I think, that the state's going to be
able to meet this. And, if they can't, they've missed something
pretty significant. So, that's--that's why I--I think it's fair to
keep them together. I think we've made great efforts to--I think
they can meet this standard. As far as the municipalities go, if
they haven't done this, they're not gonna get knocked out and
they'll gonna have to go to the trier of fact, and it--and it
manages very nicely to encompass the real--the real heart of our
concerns."
Number 1622
MS. VOIGTLANDER said the language as well as the legislative intent
demonstrates that this is to be decided as a matter of law, as a
preliminary matter to effectuate the purpose behind immunity: to
keep the public officials and coffers from having to diminish
resources for litigation rather than other matters. She also noted
that Amendment 8, as amended, is consistent with the first
committee substitute.
Number 1679
CHAIRMAN KOTT reminded the committee members that 120 of 200
critical systems of the state are still out of compliance.
Number 1683
REPRESENTATIVE GREEN said this allows for litigation against
municipalities for those who have not exercised the hurdles in the
bill. If they don't, they lose their immunity and stand on their
own.
Number 1733
CHAIRMAN KOTT said he hopes that the state is making a reasonable
effort to bring those 120 critical systems into compliance,
otherwise the state will be subject to the "bye, bye budget pie."
Number 1746
REPRESENTATIVE ROKEBERG said the adoption of Amendment 8, as
amended, assures that there will be litigation against the state.
REPRESENTATIVE GREEN said he disagrees.
CHAIRMAN KOTT called for a roll call vote. Representatives Green,
Murkowski, Croft and Kerttula voted in favor of the motion.
Representatives Rokeberg and Kott voted against the motion. The
motion passed by a vote of 4-2.
Number 1794
REPRESENTATIVE ROKEBERG made a motion to move the committee
substitute to HB 57, as amended, from the committee with individual
recommendations and the attached fiscal note(s). There being no
objection, CSHB 57(JUD) was so moved from the House Judiciary
Standing Committee.
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