Legislature(2003 - 2004)
02/05/2004 08:05 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.