Legislature(2003 - 2004)
05/06/2004 08:16 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 549(JUD)am-UNSOLICITED COMMUNICATION:AIRCRAFT CRASH
MS. VANESSA TONDINI, staff to Representative McGuire, chair of
the House Judiciary Committee, reminded members that she has
presented HB 549 several times so was available to answer
questions.
CHAIR SEEKINS asked Ms. Tondini if she was able to summarize
some of the conversations that have taken place about this
legislation since its last hearing.
MS. TONDINI explained that a committee member expressed concern
about the penalty and she believes an amendment may be proposed
to address that concern.
SENATOR THERRIAULT moved the following amendment [Amendment 1]:
On page 2, line 9 [version Q], change $100,000 to $10,000.
MS. TONDINI informed members that Representative McGuire does
not object to that amendment.
CHAIR SEEKINS noted that without objection, Amendment 1 was
adopted.
SENATOR FRENCH moved to adopt Amendment 2, which reads as
follows:
A M E N D M E N T 2
OFFERED IN THE SENATE BY SENATOR FRENCH
TO SCS CSHB 549(L&C)
Page 2, lines 8-12:
Delete all material and insert:
"(d) The attorney general or an
aggrieved person may institute a civil action against
a person who violates this section. In addition to
injunctive and compensatory relief, a civil penalty
not to exceed $10,000 may be imposed for each
violation."
CHAIR SEEKINS objected for the purpose of discussion.
SENATOR FRENCH explained that the purpose of Amendment 2 is to
turn what is proposed to be a crime into a civil wrongdoing.
Amendment 2 would allow either the attorney general or an
aggrieved person to bring a civil action against an attorney or
an agent of the airlines to seek redress for any intrusion
during the 45-day cooling off period. He opined that the main
benefit of Amendment 2 is that it will allow the wrongs to be
addressed. He said assuming that an overworked district attorney
will file a criminal complaint against a lawyer for contacting
an injured victim of an airplane accident within 45 days of the
accident is unlikely. He believes the caseloads of the district
attorneys' offices will preclude them from taking action on what
they will see as a civil issue. Amendment 2 will put the power
in the attorney general's office or the aggrieved person's hands
to take action. He repeated that he believes this bill addresses
a civil wrong, not a crime.
MS. TONDINI maintained that Representative McGuire opposes
Amendment 2 as she believes a criminal penalty is appropriate.
Such a penalty will get the attention of the Alaska Bar
Association. The existing penalty in HB 549 does not include
jail time. She furthered that although the district attorneys'
caseload may be high, that is also the case for the civil
division of the attorney general's office.
SENATOR OGAN asked what the sanctions would be if an attorney is
convicted of this crime.
MS. TONDINI said she believes the bar association would take
notice of a criminal conviction on an attorney's record and may
disbar that attorney or take other appropriate action.
SENATOR FRENCH said he believes the answer to that question is
"it depends." He said the bar association sometimes waits until
a criminal action is complete before taking action, which may
result in an unnecessary delay. He said if he was charged with
this crime, he would insist on a jury trial and appeal it for as
long as possible. He believes the civil route is cleaner and
faster, and more likely to lead to prosecutions than a criminal
action.
CHAIR SEEKINS asked Senator French if he would use the same
tactic to drag the case out for a civil action.
SENATOR FRENCH said the "aura" of a criminal conviction is
higher and a civil charge would more likely lead to settlement.
The two parties could settle their disagreement over the
practice of driving airplane passengers to the hospital, which
is what this bill aims to stop. He said he sees Amendment 2 as a
rational first step; if, in two years it has not produced any
results, the undesired activity can be made a crime.
SENATOR THERRIAULT noted that a criminal charge could only be
brought by the state, whereas Amendment 2 would permit an
aggrieved person to bring a civil charge.
With no further discussion, the roll was called. Amendment 2
failed to be adopted with Senator French in favor and Senators
Therriault, Ogan and Seekins opposed.
CHAIR SEEKINS said he believes the criminal penalty will be a
greater deterrent.
SENATOR OGAN moved SCS CSHB 549(JUD) and its attached fiscal
notes from committee with individual recommendations.
SENATOR FRENCH objected.
The motion to move SCS CSHB 548(JUD) from committee carried with
Senators Ogan, Therriault and Seekins in favor and Senator
French opposed.
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