Legislature(2003 - 2004)

04/25/2003 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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.                                                                                                        

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