Legislature(2003 - 2004)

02/05/2004 08:05 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 297-WILDFIRES AND NATURAL DISASTERS                                                                                        
                                                                                                                                
Number 2735                                                                                                                     
                                                                                                                                
CHAIR WEYHRAUCH  announced that  the next  order of  business was                                                               
HOUSE  BILL NO.  297, "An  Act  relating to  wildfires and  other                                                               
natural disasters."                                                                                                             
                                                                                                                                
Number 2746                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SEATON  moved to  adopt  HB  297, for  discussion                                                               
purposes.  There being no objection, it was so ordered.                                                                         
                                                                                                                                
Number 2750                                                                                                                     
                                                                                                                                
REPRESENTATIVE BILL STOLTZE,  Alaska State Legislature, testified                                                               
as the  sponsor of HB  297.  He said  the issue of  wildfires and                                                               
other natural disasters was brought  about because of occurrences                                                               
in the  Matanuska-Susitna (Mat-Su) Valley:   Miller's Reach Fire,                                                               
Lazy Mountain [wildfire],  and other natural disasters.   He said                                                               
people were  put in  the position  of not  being able  to protect                                                               
their  homes.   He  said  his  goal is  to  try  to provide  some                                                               
mechanism  to allow  people to  protect  their property,  knowing                                                               
that they accept  risks and responsibilities while doing  so.  He                                                               
mentioned many areas that need protection.                                                                                      
                                                                                                                                
Number 2862                                                                                                                     
                                                                                                                                
CHAIR WEYHRAUCH  announced that  he does not  intend to  move the                                                               
bill today.                                                                                                                     
                                                                                                                                
Number 2888                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HOLM questioned  why  there  is an  indeterminate                                                               
fiscal note from the Office of Public Advocacy.                                                                                 
                                                                                                                                
REPRESENTATIVE  STOLTZE   said  he  doesn't  understand   why  it                                                               
happened.                                                                                                                       
                                                                                                                                
Number 2941                                                                                                                     
                                                                                                                                
CHAIR WEYHRAUCH  voiced a  concern that the  bill be  referred to                                                               
[the House  Judiciary Standing Committee] because  it does create                                                               
a crime.  He explained that  often when a crime is committed, the                                                               
Office of  Public Advocacy is  brought in to defend  the accused.                                                               
He asked for testimony from the Department of Law on this issue.                                                                
                                                                                                                                
TAPE 04-13, SIDE B                                                                                                            
Number 2948                                                                                                                     
                                                                                                                                
GAIL VOIGTLANDER,  Chief Assistant  Attorney General  - Statewide                                                               
Section  Supervisor,  Torts  and Worker's  Compensation  Section,                                                               
Civil  Division   (Anchorage),  Department  of   Law,  introduced                                                               
herself.                                                                                                                        
                                                                                                                                
Number 2932                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  Ms. Voigtlander  to speak  about                                                               
the  wording in  the  fiscal  note from  the  Department of  Law,                                                               
referring to the  sentence, "The bill also does not  speak to any                                                               
risk  transferring  to the  resident  in  the event  of  property                                                               
damage  rather  than   injury  or  death  to   other  persons  or                                                               
responders endangered  by a resident's  entry or reentry  into an                                                               
area threatened by wildfire or  natural disaster."  He asked that                                                               
the language be considered for an amendment to the bill.                                                                        
                                                                                                                                
Number 2910                                                                                                                     
                                                                                                                                
MS.  VOIGTLANDER said  she would  speak  about Section  2 of  the                                                               
bill,  and  not  Section  1, because  she  represents  the  Civil                                                               
Division of the  Department of Law.  She  addressed the liability                                                               
issues of the bill.   The first issue was about  the way the bill                                                               
sets out  a test for the  emergency provider to use  to determine                                                               
whether the  person seeking to  remain in a area  being evacuated                                                               
or  wanting to  reenter an  area  being evacuated  is capable  of                                                               
making  a  reasonable  and  informed decision.    The  bill  also                                                               
requires that the  person reentering or evacuating  be advised of                                                               
certain  risks, she  said.    She noted  that,  from a  liability                                                               
standpoint, a problem could arise if  there were to be a question                                                               
later  on about  whether someone  had  been capable  of making  a                                                               
reasonable  or informed  decision,  or had  been  advised of  the                                                               
statute  requirements.   She said  paperwork would  be needed  to                                                               
provide this information  in the form of a written  report by the                                                               
emergency provider.  The emergency  provider would need something                                                               
to refresh  his/her recollection, if  there was a lawsuit  two or                                                               
three  years  down  the  road.   She  mentioned  the  statute  of                                                               
limitations for such a lawsuit would probably be two years.                                                                     
                                                                                                                                
Number 2787                                                                                                                     
                                                                                                                                
MS. VOIGTLANDER  stated that "the  test that is applied  here" is                                                               
not unlike  what law enforcement  [officers] face when  there's a                                                               
challenge  to Miranda  Rights  with a  criminal  defendant.   The                                                               
question  is  whether the  person  was  capable  at the  time  of                                                               
waiving his/her Miranda  Rights and whether they  were advised of                                                               
their  rights.     The  police  use  a  written   form  for  this                                                               
information.                                                                                                                    
                                                                                                                                
Number 2750                                                                                                                     
                                                                                                                                
MS. VOIGTLANDER stated that the  breadth of immunity in Section 2                                                               
(b) needs  to be broader.   She  said this section  only includes                                                               
bodily injury  or death,  but omits property  damage.   There are                                                               
concerns about  claims from a  neighbor property owner  who might                                                               
claim, at a  later date, that a  person who was let  back into an                                                               
evacuated  area  did damage  to  the  neighbor's property.    She                                                               
recommended  the  breadth  of immunity  be  expanded  to  include                                                               
property damage.                                                                                                                
                                                                                                                                
MS. VOIGTLANDER said the expansion  [of immunities] would be more                                                               
compatible with  language in AS  41.15.045, AS 41.17.081,  and AS                                                               
26.20.140,  which have  to do  with  firefighting immunities  and                                                               
civil defense immunities.                                                                                                       
                                                                                                                                
Number 2653                                                                                                                     
                                                                                                                                
REPRESENTATIVE SEATON  wondered if Ms. Voigtlander  could provide                                                               
written comments to the committee.                                                                                              
                                                                                                                                
MS. VOIGTLANDER replied that she would.                                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  these  ideas bring  up some  very                                                               
important implications for the legislature  to consider.  He said                                                               
the general  issue in this  bill is  about what to  do concerning                                                               
residents in  the areas of  natural disasters.   He said  that in                                                               
addition  to  [the  House  Judiciary  Standing  Committee]  being                                                               
interested in this bill, the  [Department of Military & Veterans'                                                               
Affairs  (DMVA)]  would be  interested,  because  the offices  of                                                               
emergency preparedness  are coordinated through DMVA,  as well as                                                               
civil defense issues.  He  added that the House Special Committee                                                               
on Military and Veterans' Affairs  would also have an interest in                                                               
the bill.   He  gave an  example of  relatives who  believed that                                                               
children  were  trapped in  a  rubble  and  didn't have  time  to                                                               
explain -  they just  wanted to  rescue the kids.   He  said he'd                                                               
hate to see  someone without malicious intent  criminalized for a                                                               
rescue.  He repeated that it is an important issue.                                                                             
                                                                                                                                
Number 2541                                                                                                                     
                                                                                                                                
CHAIR WEYHRAUCH asked  if this bill is connected to  the Big Lake                                                               
Fire.                                                                                                                           
                                                                                                                                
Number 2530                                                                                                                     
                                                                                                                                
REPRESENTATIVE  STOLTZE  said  there were  probably  implications                                                               
[from  Big  Lake],  but  probably more  from  the  Lazy  Mountain                                                               
incident.  He noted that he  had waited to propose the bill until                                                               
litigation  from  the  Big Lake-Miller's  Reach  Fire  was  over,                                                               
because  he   was  sensitive  to   the  issues   surrounding  the                                                               
litigations.                                                                                                                    
                                                                                                                                
Number 2460                                                                                                                     
                                                                                                                                
CHAIR  WEYHRAUCH asked  if  Section 2  (b)  would give  statutory                                                               
immunity to  [emergency providers] if  they are negligent,  or if                                                               
the discretionary  function immunity doctrine would  still apply.                                                               
He cited an example of a  policeman allowing a teenager into [the                                                               
evacuated area] and the teenager ending up getting injured.                                                                     
                                                                                                                                
Number 2410                                                                                                                     
                                                                                                                                
MS. VOIGTLANDER replied  that Representative Weyhrauch's question                                                               
raises  another issue.   She  explained  that the  bill does  not                                                               
address the  age of  the person wanting  to enter  the evacuation                                                               
area.  She asked how children would be dealt with.                                                                              
                                                                                                                                
MS.  VOIGTLANDER,  in   response  to  Representative  Weyhrauch's                                                               
question regarding Section  (2) (b), said if there  is a statute,                                                               
such as this  one, which "gives you a cookbook"  of the officers'                                                               
duties and obligations, then it  may no longer be a discretionary                                                               
issue.  She said it is  difficult to anticipate whether or not an                                                               
individual  officer  may  have discretionary  function  immunity.                                                               
The  test  is whether  or  not  the  officer was  acting  without                                                               
malice, had no set protocol he/she  was supposed to file, and was                                                               
exercising personal judgment, deliberation,  and discretion.  The                                                               
broader test of discretionary function  immunity is whether there                                                               
was a policy  decision versus an operational decision.   She said                                                               
the language  addresses the local  and state government,  as well                                                               
as individuals who would  be on the line.  She  said [as it reads                                                               
now] it is  limited to death or personal injury.   She added that                                                               
people may argue that derivative  suits may be independent suits,                                                               
and a  spouse may be able  to make a claim  if something happened                                                               
to a  family member who  was allowed  to return [to  an evacuated                                                               
area].                                                                                                                          
                                                                                                                                
Number 2270                                                                                                                     
                                                                                                                                
CHAIR WEYHRAUCH  questioned if,  in Section 1  (a) (2),  "makes a                                                               
false statement"  means a "false  written or  recorded statement"                                                               
like it appears in Section 1 (a) (1).                                                                                           
                                                                                                                                
Number 2246                                                                                                                     
                                                                                                                                
MS.  VOIGTLANDER  reminded Chair  Weyhrauch  that  she could  not                                                               
address  issues in  Section  1  because she  was  from the  Civil                                                               
Division.    She  deferred  to the  Criminal  Division  for  that                                                               
answer.                                                                                                                         
                                                                                                                                
CHAIR  WEYHRAUCH  stated  his belief  that  the  House  Judiciary                                                               
Standing Committee  would be  a better  committee to  review this                                                               
bill.  He  said he is trying to imagine  this bill affecting real                                                               
life situations and examples where  people would need to get into                                                               
or out of evacuation areas.  He  said he does not want to subject                                                               
public officials, who are "trying to do good," to liability.                                                                    
                                                                                                                                
REPRESENTATIVE  STOLTZE  agreed  that  it  is  an  imprecise  and                                                               
awkward process trying to protect people from themselves.                                                                       
                                                                                                                                
Number 2087                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG   mentioned  the  title  of   the  bill                                                               
includes many  natural disasters, but asked  for consideration of                                                               
other disasters that  might occur in a high crime  area.  He gave                                                               
an example of an evacuation of  a building because of a shootout.                                                               
He  recommended  considering these  kinds  of  situations in  the                                                               
bill.                                                                                                                           
                                                                                                                                
Number 2027                                                                                                                     
                                                                                                                                
REPRESENTATIVE  LYNN  gave  an  example  of  a  terrorist  attack                                                               
evacuation  as another  kind of  unnatural disaster  and said  it                                                               
would not be  covered under this bill.  He  added, "This wouldn't                                                               
cover a World Trade Center-type situation."                                                                                     
                                                                                                                                
REPRESENTATIVE STOLTZE  stated the  reference to  children [being                                                               
allowed  into an  evacuation area]  needs to  be considered.   He                                                               
related feeling a  sense of pride as a child  when he was allowed                                                               
to [be available to help] his  parents save their house during [a                                                               
flood].                                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG gave an example  of when a school needed                                                               
to be evacuated, and urged consideration of all disasters.                                                                      
                                                                                                                                
Number 1908                                                                                                                     
                                                                                                                                
CHAIR WEYHRAUCH announced that HB 297 was heard and held.                                                                       
                                                                                                                                

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