Legislature(2003 - 2004)
04/25/2003 01:10 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 171-SUITS & CLAIMS: MILITARY/FIRE/DEFENSE CHAIR SEEKINS announced SB 171 to be up for consideration. MS. GAIL VOIGTLANDER, Assistant Attorney General, said this bill covers four areas of governmental emergency operations. The first area is search and rescue. The Alaska State Troopers conduct about 400 of them each year and they decide when and how to initiate a search or rescue and often call on the National Guard and community resources to assist. This bill would provide immunity from tort lawsuits for state and local government and their employees when they participate in the rescue activities (Section 2). The next topic is about intra-military court claims in response to an Alaska Supreme Court case, Himsel v. State 2001. In that case the court departed from the generally held intra-military tort immunity known as the "Feres Doctrine" that provides that if you are a member of a military service, you cannot sue other members of the military service for torts if you are injured. As an employee, your remedies are: if you are acting under federal orders, getting federal workers' compensation and other benefits and, if you are under state orders, getting the state's workers' compensation benefits. Most military operations in Alaska are with people carrying out federal orders. This says you cannot sue in addition to workers' compensation remedies; it does not change your entitlement to those benefits nor does it change the amount of benefits (Sections 4 -6). Section 3 provides that tort claims are barred against the state for acts of the organized militia (the Alaska National Guard and the state militia) unless the governor calls them out under Title 26.050.70. The third topic of the bill is civil defense and homeland security. Civil defense is already provided for in Title 26. Since the events of 9-11, the civil defense roll has expanded into homeland security issues, as well. The federal government has expanded and thrown back to the state governments more activity in this area than they used to have. This portion of the bill seeks to continue an immunity that is already in statute for civil defense activities and extend it to the homeland security area. It bars tort claims against government employees and authorizes volunteers if a homeland security worker sustains damages. It does not affect entitlement to the extent of homeland security benefits. The second portion of that area is that it bars third party tort claims against government employees and authorized volunteers for damages unless the person who is injured can demonstrate malice or reckless indifference by clear and convincing evidence. In existing Title 26 there is an exception that has to do with one area where immunity is not extended. This bill tracks that in terms of incorporating exclusion where third party claims can be asserted in the area of civil defense and homeland security (sections 7-11). Finally, the fourth topic is that of fire management and firefighting activities. Two statutory sections are amended to bar tort claims by third parties against state, local government or other firefighting groups and their employees. This is in response to two Alaska Supreme Court cases that were decided in 2001, Angaboognuk and Bartek cases, which arose out of the Miller's Reach Fire. The court diverged from ninth circuit precedent for other western states that provide immunity for firefighting activities either through common law or through specific statutes. This portion of the bill would have Alaska in keeping with the other western states that have wild land fire exposure. After-the-fact litigation is costly to the state to defend and costly to the state's resources to have people review every step that is taken and decision that is made during an emergency operation. This bill would immunize the state and local government employees that participate in emergency activities (sections 12-13). SENATOR THERRIAULT asked if Section 9 relates to giving vaccinations. MS. VOIGTLANDER said yes, adding there are a number of federal benefits that would provide remedies to people if they receive vaccinations because of homeland security concerns. SENATOR OGAN asked if there is a case law record of precedents that the court deviated from. MS. VOIGTLANDER replied there are ninth circuit cases that affected fires out of Oregon, California and Wyoming that immunized those activities. There are state statutes or case law in the jurisdictions of California, Kansas, Oklahoma, Montana, Idaho, Delaware, Florida, Indiana, New York and Kentucky. SENATOR OGAN asked if the Alaska Supreme Court is supposed to interpret based on Alaska's constitution and statutes. He asked if there are any cases in Alaska that have been ruled as having sovereign immunity and that precedence was departed from. MS. VOIGTLANDER replied there simply has not been that type of litigation in the state until the Miller's Reach fire. It's possible that people were under the impression that there could not be such a claim made against the state for fire fighting activity. In the Agnaboognuk case the Alaska Supreme Court addressed that and simply looked at the existing statute, AS 9.50.250, on waiver of immunity and said they didn't see it in that statute. This bill would put into statute that the state had not waived its immunity for those types of claims and so the case law would then be overruled by the statute as an annunciation of a public policy in the state of Alaska. SENATOR FRENCH asked if the TSA employees who work at the airport are considered state homeland security workers. MS. VOIGTLANDER said she understands that all TSA employees are employed through the Federal Homeland Security Office. COMMISSIONER BILL TANDESKE, Department of Public Safety, said he thinks it is appropriate that his department is responsible for search and rescue, but there are a lot of variables involved in an effort in a state this size. They have an obligation to those folks for their safety. I think it's important that we make search and rescue decisions based on sound search principles and doing the right thing for the right reasons.... One of the guiding principles of any law enforcement operation is don't let a bad situation get worse. If you're missing one, don't end up missing three. COMMISSIONER TANDESKE said there are a lot of notices of snow mobilers over due and volunteers find the vast majority of them. He questioned the validity of the families that lost loved ones using litigation as a way to find answers about why the system didn't work. SENATOR OGAN asked how many planes are listed as missing in Alaska. COMMISSIONER TANDESKE replied that he didn't know for sure. SENATOR OGAN said he had heard around 40 to 50. He asked if they are in any litigation now over search and rescue issues. COMMISSIONER TANDESKE replied that he didn't know, since he had been with the department just three months. MS. VOIGTLANDER informed members that the Denali Highway case is on appeal to the supreme court. SENATOR OGAN asked if there had been some disciplinary action associated with that case. He asked what assurances Alaskans have that these things will be taken care of if they are held harmless in such situations. COMMISSIONER TANDESKE clarified that he was aware of the appeal on the Denali case; he thought the question pertained to new litigation. Without getting into specifics, he said that there was disciplinary action in that case and he would hold his employees accountable just as they are in any situation. CHAIR SEEKINS asked how this bill would have affected the Olrum case specifically. COMMISSIONER TANDESKE replied there is a fair amount of misinformation about that case and he isn't sure how to answer since he is not an attorney. CHAIR SEEKINS recalled that temperatures were around -50 degrees when that happened. COMMISSIONER TANDESKE replied that is correct. CHAIR SEEKINS asked if the troopers would normally send out the snow machines to find someone at -50 temperatures. COMMISSIONER TANDESKE said not necessarily on a snow machine, but they would take all circumstances into account before making a decision. 2:45 p.m. CHAIR SEEKINS asked if this bill would hold him harmless when he makes a judgment call about a search or rescue. COMMISSIONER TANDESKE replied he would have to refer to a legal mind to answer that question, but this bill does not change the statutory responsibility for search and rescue within his department. CHAIR SEEKINS asked if it would insulate the department somewhat from acts or omissions. MS. VOIGTLANDER responded that this would immunize the actions arising out of the search and rescue. "It would mean that there could not be a civil law suit for damages, a tort liability claim." She explained that the proposed amendment cleans up language in the civil and homeland defense sections. SENATOR FRENCH said he reads the bill as being an absolute bar to any claim that arises out of the troopers handling a search and rescue. TAPE 03-31, SIDE A 2:48 p.m. SENATOR FRENCH said it's possible to imagine a situation where there is just outright negligence. COMMISSIONER TANDESKE said he would have to defer to legal minds. SENATOR OGAN asked how many cases there are for fire fighting. MS. VOIGTLANDER replied the Miller's Reach fire was consolidated into one class action case and there is one other claim and one other lawsuit. She didn't know of a dollar value for either one of them. She is hesitant to comment on Miller's Reach because it is in trial right now. CHAIR SEEKINS asked if this statute would act as a bar to protect the state from these types of actions in the fire fighting area. MS. VOIGTLANDER replied yes, but she noted that this legislation is not retroactive. MR. JEFF JAHNKE, State Forester, said that there are about 150 million acres to protect and they get between 500 and 600 forest fires per year. Their success depends on a safe and effective initial attack to prevent small fires from becoming big fires. SB 171 would provide immunity for firefighters fighting wild land fires. This is important for two major reasons. One, it would allow the firefighters to focus on safe and effective firefighting rather than having to weigh the potential for a lawsuit in every decision they make during their initial attack. Second, it would reassure the state firefighters that they have the same protection and immunity that their local and federal counterparts, who are often fighting with them, have. It would reduce reluctance to becoming a leader. SENATOR THERRIAULT motioned to adopt amendment #1, sponsored by the attorney general's office. MS. VOIGTLANDER explained that the recitations referring to the federal agencies are not germane to immunizing state and local employees. The proposed amendment makes clear that the bill pertains to officers who are members of the state's organized militia on state active duty. CHAIR SEEKINS announced there is no objection to the amendment and it is adopted. He said he would hold the bill because a number of other people indicated intent to testify. There being no further business to come before the committee, he adjourned the meeting at 3:00 p.m.