Legislature(2003 - 2004)
03/27/2003 08:01 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 127-ROADSIDE MEMORIALS CHAIR WEYHRAUCH announced that the next order of business was HOUSE BILL NO. 127, "An Act allowing certain roadside memorials to be placed within the right-of-way of a state highway." [In packets was a proposed committee substitute (CS), Version 23- LS0299\I, Utermohle, 3/21/03.] Number 1906 LORI BACKES, Staff to Representative Jim Whitaker, Alaska State Legislature, presented HB 127 on behalf of Representative Whitaker, sponsor. She explained that HB 127 merely seeks to allow Alaskans the right to express their grief for the loss of a loved one with as little governmental interference as possible. When a person dies on an Alaskan highway, sometimes family and friends place items at the location of the accident to memorialize the individual. These memorials serve the following two purposes: to pay tribute to the deceased and to help warn other travelers of the potential tragedy associated with dangerous driving. These memorials are seen throughout the country and the globe. MS. BACKES pointed out the committee packet includes an informal study conducted by the Texas Department of Transportation. The study reviews how some other states handle this issue. Among those states surveyed, most allow roadside memorials officially or unofficially in various forms. Historically, Alaska's Department of Transportation & Public Facilities (DOT&PF) has ignored these personal memorials. However, about two years ago the state-sponsored memorial sign program was created; with it, DOT&PF gave notice to Alaskans that personal memorials would no longer be tolerated, and thus the roadside memorials would be removed if not taken down by a date certain. In response to this, the mother of a young lady who was killed by a drunk driver in the Fairbanks area circulated a petition requesting that the state continue to allow the personal roadside memorials. The petition contains 244 signatures. MS. BACKES pointed out that such memorials aren't restricted to automobile accidents. She said this is a phenomenon that won't be stopped, and thus Representative Whitaker believes it's wise to establish a program through which roadside memorials are allowed yet controlled. Ms. Backes noted that she has had several in-depth conversations with representatives from the DOT&PF and that she believes the majority of the concerns have been addressed in the proposed CS [Version I]. Number 1701 REPRESENTATIVE HOLM moved to adopt CSHB 127, Version 23- LS0299\I, Utermohle, 3/21/03, as the working document. REPRESENTATIVE GRUENBERG objected for discussion purposes and then immediately removed his objection. [Version I was treated as adopted.] REPRESENTATIVE GRUENBERG said he supports the legislation generally. However, he expressed concern with subsection (f) [page 2]. He posed a situation in which a fairly large roadside memorial falls into the roadway and causes an accident; voicing concern about the broad immunity, he said the state should have some responsibility for that. Furthermore, a memorial could be placed on the road if snow on the ground made it difficult to see where the roadside ended, for example, and he said he'd like for the state to have some responsibility if the sign is actually placed in the road and causes an accident. REPRESENTATIVE HOLM referred to page 1, line 10, which specifies that roadside memorials "must not interfere with the use of the highway, with other uses of the right-of-way"; he questioned why Representative Gruenberg's concern would be a problem. He pointed out that DOT&PF must be informed before [a roadside memorial is erected]. REPRESENTATIVE GRUENBERG asked if there is a requirement that the individual erecting the roadside memorial inform DOT&PF in advance. REPRESENTATIVE SEATON referred to page 2, line 1 [paragraph (2), "inform the department of the location of the memorial"]. REPRESENTATIVE GRUENBERG pointed out that the language doesn't require it in advance. REPRESENTATIVE HOLM said he suspects that the requirement to not interfere and to inform DOT&PF places the onus on the state to recognize the location of the roadside memorial. REPRESENTATIVE GRUENBERG expressed his desire to have some time limit regarding notification to the department. He suggested language specifying that the department must be notified within 48 hours of placement of the roadside memorial. Number 1365 MS. BACKES said she didn't believe Representative Whitaker would have any problem with the aforementioned language. However, reporting to the department within 48 hours may be a little on the short side, especially since most of these memorials are spontaneously put in place within hours of the accident. Furthermore, these memorials are often in response to extreme grief and distress. Ms. Backes suggested that perhaps notification within a week or two would be more appropriate. REPRESENTATIVE GRUENBERG announced that he would offer an amendment in which [notification to DOT&PF] would need to occur within five days. Representative Gruenberg said he didn't want to absolve the department from taking reasonable action to remove [a memorial] that is in the roadway. He stressed the need to hold the department to a normal tort standard. He specified that he is concerned with regard to the ultimate responsibility. MS. BACKES said DOT&PF already has the responsibility to take care of hazards in the roadway and maintain the roadways free of hazards. She said she wasn't sure that the sponsor would agree to reasonably require DOT&PF to respond to a hazard such [as one created from a roadside memorial]. REPRESENTATIVE GRUENBERG clarified that he didn't want to lower the responsibility. He referred to page 2, lines 10-12, the sentence, "The state is not liable for damage to, or for damage or injury resulting from the presence of, a memorial in the right-of-way of a state highway." He said it provides complete immunization and changes the law on that subject. MS. BACKES highlighted the following from AS 44.80.070: When the state, or a department or agency of the state that has control over a highway or vehicular way or area, permits a portion of the highway or vehicular way or area, as defined under AS 28.40.100, to be used for a special purpose, the state is not subject to legal action or recovery of damages for injury arising out of, or in any manner connected with the special purpose use. MS. BACKES said [the drafting attorneys] in Legislative Legal and Research Services are of the opinion that the aforementioned statute already addresses this. The language in the proposed CS is almost redundant, she added, but was included in order to further allay the concerns of DOT&PF. Number 0915 REPRESENTATIVE SEATON returned to subsection (f) on page 2. He posed a situation in which there is an accident close to the site of a roadside memorial. If the individual claims to have been distracted by the memorial, would the liability be transferred from that individual to the person who placed the memorial on the roadside? MS. BACKES replied no. She said the statute requires that drivers have the responsibility to not drive negligently and not be unduly distracted by things on the road; if there was an accident in which an individual claimed to have been distracted by a roadside memorial, she was certain it would have to be argued in court. She went on to say there is no intention for the individual placing the memorial on the roadside to assume the responsibility for someone having an accident, unless the memorial directly interfered with the safety of the road. REPRESENTATIVE SEATON asked if subsection (f) accomplishes that or means that the individual placing the memorial on the right- of-way bears the sole risk and liability for damage and injury resulting from the presence of the memorial. MS. BACKES responded that if it can be proven that the cause of the accident was the roadside memorial, the liability would then be on the individual who placed the memorial on the roadside. REPRESENTATIVE GRUENBERG returned to AS 44.80.070 and related his understanding that it applies to someone who has some type of permit and who has negotiated with the department to obtain permit. The aforementioned is a different situation from that of an individual placing a memorial on the roadside who might not have even notified the department for a significant period of time. Number 0623 REPRESENTATIVE BERKOWITZ inquired as to the default provision regarding liability, if subsection (f) is deleted. MS. BACKES reiterated that Legislative Legal and Research Services has said AS 44.80.070, "Liability of state under special use permits", would solve that. In regard to Representative Gruenberg's concern, Ms. Backes said a special- use permit doesn't necessarily have to be a written permit. She emphasized that placement of a roadside memorial in the middle of the road would be nonconforming and thus would fall outside the bounds of the allowed special use under HB 127. REPRESENTATIVE BERKOWITZ opined that if any discussion of liability was deleted, the same rules of liability that apply elsewhere would apply in this instance. Therefore, he suggested that subsection (f) could be deleted. MS. BACKES said Representative Whitaker wouldn't have a problem with the deletion of subsection (f), which was inserted to address DOT&PF's concerns with regard to its liability to an individual in an accident with regard to a roadside memorial. Furthermore, the department was concerned with its liability, should its maintenance equipment accidentally [destroy] a roadside memorial. If the committee chooses to delete subsection (f), she suggested considering inclusion of some language specifying that the state isn't responsible for damage to a memorial. REPRESENTATIVE HOLM asked if Ms. Backes would suggest that the committee retain the last sentence of subsection (f). REPRESENTATIVE BERKOWITZ agreed that [the first sentence of subsection (f) could be deleted as well as] the disjunctive clause, "or for damage or injury resulting from the presence of,". Therefore, subsection (f) would read as follows: "The state is not liable for damage to a memorial in the right-of-way of a state highway." MS. BACKES related that Representative Whitaker fully expects that DOT&PF will take care not to damage these memorials. Therefore, she suggested including the word "inadvertent". REPRESENTATIVE BERKOWITZ remarked that at some point, one has to count on the discretion of people. Furthermore, if one reviews the budget, one discovers that there isn't going to be any highway maintenance anyway, and thus it shouldn't be a problem. Number 0138 CHAIR WEYHRAUCH related his understanding that subsection (f) was included so that any damage arising from a memorial wouldn't make the state liable. MS. BACKES agreed, but reiterated the opinion of the Legislative Legal and Research Services Division that AS 44.80.070 addresses the matter also. Number 0075 REPRESENTATIVE BERKOWITZ moved that the committee adopt Amendment 1, on page 2, to delete the first sentence of subsection (f) and amend the second sentence of subsection (f) such that it would read, "The state is not liable for damage to a memorial in the right-of-way of a state highway." There being no objection, it was so ordered. REPRESENTATIVE SEATON turned attention to the term "temporary memorial" on page 1, line 7. TAPE 03-31, SIDE A Number 0001 MS. BACKES explained that the language "temporary" wasn't intended to refer to any specific timeframe but rather to mean a structure that was not permanent. She related that Representative Whitaker is reluctant to try to insert any timeframe for which these roadside memorials can remain in place. Number 0080 REPRESENTATIVE GRUENBERG offered [Amendment 2]: Page 2, line 1, after "memorial" Insert "within seven days of placement of the memorial" REPRESENTATIVE GRUENBERG specified that the purposed is so that [DOT&PF] will know the roadside memorial exists and can make arrangements to protect it and ensure that it's not in the right-of-way. CHAIR WEYHRAUCH announced that there being no objection, [Amendment 2] was adopted. REPRESENTATIVE GRUENBERG directed attention to page 2, lines 21- 23, and asked if the [department's removal of a roadside memorial] would be a cumbersome procedure. MS. BACKES answered that DOT&PF hasn't indicated that the [removal of roadside memorials identified as an unauthorized encroachment] would be problematic. In further response, Ms. Backes said she didn't know the procedure; however, from discussions with DOT&PF she has gathered that when DOT&PF crafts the regulations specifying the restrictions on the placement of these memorials, the intent is that DOT&PF will have a procedure for removal. The procedure would involve contacting the sponsor of the memorial in order to provide an opportunity for the sponsor to correct any problem associated with safety or maintenance. If the problem isn't corrected in a reasonable amount of time, DOT&PF will remove it. CHAIR WEYHRAUCH pointed out that the language on page 2, lines 21-23, refers to AS 19.25.230-19.25.250, which speaks to political signage. Notice of removal is provided via a certified letter. If the [sign] isn't removed, the department may remove it at any time. Furthermore, the cost of removal can be billed to the person that was supposed to move it. Number 0433 REPRESENTATIVE LYNN inquired as to how the grieving family would know about these provisions. Has there been any thought that the funeral home would issue paperwork specifying the procedures and contacts for placing a roadside memorial? MS. BACKES answered that although there isn't such a provision in the legislation, in conversations with DOT&PF it has come out that West Virginia has a similar program to that proposed here. West Virginia posts guidelines for these types of memorials on its web site. Ms. Backes related that the Fairbanks Chapter of Mothers Against Drunk Driving (MADD) has said it would be willing to distribute pamphlets to families in this circumstance or to funeral homes. Furthermore, the department felt that being able to post something on its web site would be appropriate. Number 0583 RACHELLE DOWDY noted her support of HB 127 and the amendments. Ms. Dowdy provided the following testimony: Standard roadside signs equal statistics. This is fine, but Alaska has the worst drunk driving record in the nation. We have to remind drivers that this is personal: it happened here, to this person, to this family, to this community, to someone who is loved - not just a statistic. Heather's friends stopped to add flowers to her marker one day, and a motorist stopped. She said she had a history of drinking and driving. She thought, "It would never happen to me," but this marker enlightened her and caused her to change her habits. It got personal; it moved beyond statistics. Would a standard, state sign have this effect? I don't think so. Does Alaska want to be known for a lack of human interest, such human interest replaced with mere statistics? I have lived in Alaska my entire life. We thrive on our individuality up here, our freedom to express ourselves, both individually and as a community. Do we really want to summarize our personal loss and our shameful national record in identical blue and white statistics? I don't. MS. DOWDY noted that this weekend she was driving the Parks Highway, where she saw one of the proposed state signs. In order to see and read the sign, Ms. Dowdy said she had to pull to the side of the highway. However, if she has seen a memorial, Ms. Dowdy said, she has known what it means and hasn't had to stop and read it. Number 0843 SANDY GILLESPIE had her testimony read by Rachelle Dowdy as follows: I support HB 127. Roadside memorials are visible on many of Alaska's highways and roads. These markers play a significant role in recognizing and acknowledging the humanity all of us share. When still a Fairbanks resident, I heard about a family of five killed by a drunk driver on the Glenn Highway just outside of Anchorage. Each time I drive into Anchorage, I see their memorial and think of that family. I never met them; I don't remember their names. But I wish them well. I acknowledge their lives and deaths. I think of the people left behind who love them. I think of other specific sites: two along the Richardson near Eielson Air Force Base; two on Chena Hot Springs Road near Fairbanks; two on Minnesota Drive in Anchorage; one on Northern Lights [Drive] near the Anchorage airport. The last one names "Brother" and "Daddy" as the person or persons [killed there]. In passing these sites, to name just a few, I have not been distracted from driving. I see the markers as I see the landscape, but the images travel with me. [It] makes me more human. My 17-year-old sister-in-law was killed by a drunk driver in Fairbanks. The family put up a memorial on the Old Steese Highway for Heather Dowdy. People driving by regularly have stopped at a nearby turnout and told us how the site has impacted them. A grandmother told us how her very young grandson asked about Heather. Grandma explained what happened, and the child refers to Heather by name. Another person told us that she ... used to drive after drinking; she no longer does because this memorial made real to her what the consequences can be. In Oregon last year, I saw the official road signs that marked traffic deaths, including drunk-driving deaths. I like those signs also. I think we have a right to know and should know every spot where a drunk driver has killed or injured someone. I think we should have signs that say how many people have been killed at various sections of highway by drunk drivers, just like we have signs on the Glenn [Highway] saying how many moose have been killed there; [it's] good, but not as important as people. The official signs are about statistics and documentation and a condemnation of a system that does not adequately deal with drunk drivers in our state. I want those signs also. But they do not replace the memorials, the signs that make us aware of and able to care about the people we have never met who have died on the roads we drive every day. Number 1082 JIM EDE noted his support of the [DOT&PF] regulations governing roadside memorials as well as the program to clean up these memorials. Mr. Ede said people's sentiment with regard to these roadside memorials only last for a few days, after which these memorials in the right-of-way become unsightly. Furthermore, these memorials are very distracting to motorists. Moreover, Mr. Ede charged that these many of these memorials are illegal due to the attached religious symbols that reside on public property. There are many court cases relating to the illegality of religious symbols on public property. Mr. Ede highlighted that the state could lose federal highway funds if it doesn't abide by the federal regulations. He suggested that the committee obtain an opinion from the attorney general before moving forward with this legislation. REPRESENTATIVE LYNN pointed out that religious symbols can be found on public property in this country's national cemeteries. Number 1388 ASA DOWDY informed the committee that he has had the privilege of having a memorial up for his daughter [who was killed by a drunk driver]. Mr. Dowdy announced his support of HB 127. He noted that he and his family have benefited from the roadside memorial established for his daughter. These roadside memorials provides [the family] a focal point while promoting safe driving. These roadside memorials are a cheap way in which to honor loved ones and inform the public of safety. Mr. Dowdy said he appreciated the [DOT&PF's] signs for those who don't have the ability or will to establish a roadside memorial, but he felt [HB 127] provided a choice of expression. In response to a comment by Representative Gruenberg, he said HB 127 was introduced before the Dowdy family became involved. REPRESENTATIVE GRUENBERG suggested the legislation could be known as the "Heather Dowdy bill" in her honor. Number 1540 BARBARA DOWDY, Member, Fairbanks Chapter of Mothers Against Drunk Driving (MADD), began by noting her support of HB 127 as amended. She informed the committee that her daughter, Heather, was killed September 30, 2000, at 3:00 in the afternoon by a drunk driver. Although it has been two-and-a-half years since Heather was killed, Ms. Dowdy emphasized that [the family] hasn't forgotten the issues or the memorial they placed [on the roadside] for her. BARBARA DOWDY took exception to an earlier statement indicating that someone would stop grieving within two days. She noted that there are two roadside signs on the New Steese Expressway that she passes every day and those signs make no impact. In fact, after nine months of passing these signs, she had to have someone point them out for her to notice them, whereas people see roadside memorials. Furthermore, roadside memorials become a focal point for grieving. Although a small minority of people believe the crosses are problematic with regard to the separation of church and state, she said, there are no legal grounds because these crosses are being put in place by the families, not the state. BARBARA DOWDY opined that a cross has become more than a religious symbol, since it is now a national icon and symbol of respect for someone who has died. She said she didn't see how a memorial to her daughter could infringe on anyone else's rights, and she asserted her right to place the cross and flowers to commemorate her daughter. BARBARA DOWDY turned to the issue of federal highway funds' being tied to design and construction. She said federal highway funds have nothing to do with maintenance. These memorials seem to be a maintenance issue, although the families and friends of the deceased are maintaining these memorials and thus no state funds are used for the memorials' maintenance or construction. Therefore, the state is saved $500 for every memorial. She opined that passage of HB 127 will make the roadside memorials legal and thus the threat of losing federal funds a nonissue. MS. DOWDY closed by reading the last paragraph of the an article entitled "Roadside Memorials: Marking Journeys Never Completed" found in the Tombstone Traveler's Guide by Chris Tina Leimer, which reads as follows: But, for many people, that can't replace the healing balm of roadside memorials. Roadside memorials are folk art created out of love and grief. Unfettered by regulations or cost, they are creative acts, restorative acts in the face of destruction. They allow the remembrance to be matched with the death: the death happened in public; the memorial may need to be public, in the very venue that is so intimately connected with the deceased, the place where he died. And since the death was sudden, unexpected, and maybe senseless but not unique, roadside memorials let people know that a particular person, an individual, was alive. They say, "We will not let you die unnoticed; you are valuable; you deserve to be remembered." And they invite the world to join in. MS. DOWDY urged the committee to pass HB 127 [as amended]. REPRESENTATIVE LYNN announced his strong support of this legislation. He related his belief that it's a disgrace for DOT&PF to disallow the appropriate memorials. Number 1830 REPRESENTATIVE LYNN moved to report CSHB 127, Version 23- LS0299\I, Utermohle, 3/21/03, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 127(STA) was reported from the House State Affairs Standing Committee.
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