03/06/1998 01:35 PM Senate JUD

          HB   7 - VICTIM/JUVENILE OFFENDER MEDIATION                          
                                                                               
CHAIRMAN TAYLOR noted that the newest version of HB 7 limits                   
immunity to those who work in a quasi-judicial capacity, mediators,            
and those performing a discretionary function.                                 
                                                                               
SENATOR PARNELL moved the adoption of SCS for CSHB 7, judiciary                
version "L." Without objection, it was so ordered. SENATOR PARNELL             
briefly touched on the two sections of immunity that remained                  
within the bill and provide discretionary immunity to the board of             
directors and mediators. SENATOR PARNELL asked MR. JOEL LOUNDSBURY             
if state employees were held liable for discretionary or non-                  
discretionary functions. MR. LOUNDSBURY did not know and CHAIRMAN              
TAYLOR explained that discretionary functions are the decision                 
making, designing and planning phases of any given thing. Non-                 
discretionary functions are the resulting actions implementing the             
policy or decision of the discretionary function. CHAIRMAN TAYLOR              
said there is always debate in the process of determining whether              
any given thing falls under the category of a discretionary act.               
                                                                               
MS. VIRGINIA ESPENSHADE testified via teleconference from Homer.               
MS. ESPENSHADE, the coordinator of the Kenai Peninsula Youth Court,            
stressed the court's reliance on a small paid staff and lots of                
volunteers. She expressed concern that limited immunity will not               
cover these volunteers and will not protect the bulk of the work               
that the court does. Ms. ESPENSHADE mentioned that not all youth               
courts are run by nonprofit corporations and those that are not                
have boards of directors who are the least involved in the actual              
operations of the court. She mentioned that out of eight or nine               
attorneys present at any given court hearing, only three or four               
are acting in a quasi-judicial function. She wanted to be sure the             
committee understood how limited the new immunity provisions are.              
                                                                               
CHAIRMAN TAYLOR replied that he clearly understood this dilemma,               
but knew that discretionary functions are still immunized even if              
the blanket immunity previously in the bill no longer exists.                  
                                                                               
MS. ESPENSHADE asked if the immunity was qualified and CHAIRMAN                
TAYLOR said it was qualified by the terms wanton and willful, but              
negligence was not included and he believes immunity from                      
negligence is not good public policy. MS. ESPENSHADE asked the                 
committee to consider defining the breadth of the immunity in terms            
of an individual's actions as they relate to their job at youth                
court. CHAIRMAN TAYLOR responded by saying police officers, for                
example, are not immunized for negligence. Accidents happen and                
fair compensation should be required.                                          
                                                                               
MS. ESPENSHADE said youth court's activities are limited to certain            
hours and again she wanted to convey how limited this immunity is.             
She expressed concern that this limited immunity may be interpreted            
as an explicit exclusion of immunity for those not covered. She                
stressed that youth court is run on volunteers and hopes the state             
can find some way to support them. CHAIRMAN TAYLOR said he did this            
type of work as a judge, with the help of volunteers, and he could             
not escape the potential of civil liability. He said if an accident            
occurs, it would be almost impossible to explain this immunity to              
the family of the injured victim. MS. ESPENSHADE indicated that the            
highest potential for this type of accident would be in the work               
service component. She suggested perhaps this component could be               
excluded and immunity cover youth court workers only up until the              
point of sentencing. She emphasized they were just hoping for more             
coverage.                                                                      
                                                                               
CHAIRMAN TAYLOR said they have tried to break it down to the extent            
that the board and any quasi-judicial members are covered. He said             
if her logic was extended, it would mean all community service                 
workers on probation should be covered. MS. ESPENSHADE replied                 
that, as she reads the immunity now, there is no immunity outside              
of the courtroom setting. CHAIRMAN TAYLOR asked for an example of              
what type of liability might be incurred in these other phases and             
MS. ESPENSHADE could not.  MS ESPENSHADE suggested that because she            
was unable to come up with a single hypothetical case of liability,            
CHAIRMAN TAYLOR should not worry about granting the requested                  
immunity.                                                                      
                                                                               
MR. SCOTT CALDER testified via teleconference from Fairbanks and               
made some general comments on youth courts and said he feels there             
may be too much immunity granted now.                                          
                                                                               
MS. SHARON LEON, Executive Director of the Anchorage Youth Court,              
testified via teleconference from Anchorage and said all youth                 
court activities are supervised by carefully chosen volunteers who             
would not be covered until they actually arrive at work. CHAIRMAN              
TAYLOR commented that these on-site volunteers would be covered by             
worker's compensation and a private insurance policy. CHAIRMAN                 
TAYLOR asked if they carry liability insurance. MS. LEON replied               
yes, and mentioned they also carry Directors and Officers insurance            
and auto insurance for employees driving personal vehicles when on             
youth court business.                                                          
                                                                               
MS. LINDA JOHNSON, a contract attorney for the Anchorage Youth                 
Court, said the bill's new version was distressing in that the                 
youth court is not covered as an entity and discretionary                      
activities by youth court staff are also not covered. MS. JOHNSON              
mentioned that the board does not engage in day to day court                   
activities and do not carry out many of the discretionary functions            
of the court. She mentioned that the youth court has all the                   
components as well as the confines of the legal system. She                    
believes that excluding the staff does a disservice to the youth               
court, which is carrying out the state's work. CHAIRMAN TAYLOR                 
asked if MS. JOHNSON is aware of any immunity enjoyed by court                 
system staff and volunteers. MS. JOHNSON replied that court                    
employees are covered by immunity for discretionary functions and              
CHAIRMAN TAYLOR said that was still covered in the bill; the                   
committee was trying to get at the discretionary functions of the              
courts as opposed to the support activities surrounding these                  
decision-making functions. MS. JOHNSON asked how the discretionary             
functions of the board of directors would be different from those              
of a staff member. CHAIRMAN TAYLOR said that staff would probably              
be covered, along with the person who directed their actions, by               
the doctrine of respondeat superior, to the extent that they were              
carrying out a legitimate discretionary function as authorized by              
the board of directors.                                                        
                                                                               
MS. JOHNSON explained that her complaint was specifically that only            
board members, and exclusively board members, would be covered by              
discretionary immunity.                                                        
                                                                               
SENATOR PARNELL commented that maybe they should give the bill some            
more thought. CHAIRMAN TAYLOR agreed.