Legislature(1995 - 1996)
02/19/1996 01:05 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 19, 1996
1:05 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL 316
"An Act relating to civil liability for false claims and improper
allegations or defenses in civil practice; and providing for an
effective date."
- CSHB 316(JUD) PASSED OUT OF COMMITTEE
*HOUSE BILL 484
"An Act relating to enforcement of restitution orders entered
against minors."
- HB 484 PASSED OUT OF COMMITTEE
HOUSE BILL 433
"An Act relating to an exemption to the unauthorized publication or
use of communications and the prohibition against eavesdropping for
certain law enforcement activities."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 316
SHORT TITLE: CIVIL LIABILITY FOR IMPROPER LAWSUIT
SPONSOR(S): REPRESENTATIVE(S) MULDER
JRN-DATE JRN-PG ACTION
04/21/95 1427 (H) READ THE FIRST TIME - REFERRAL(S)
04/21/95 1427 (H) JUDICIARY
02/16/96 (H) JUD AT 1:00 PM CAPITOL 120
02/19/96 (H) JUD AT 1:00 PM CAPITOL 120
02/21/96 2825 (H) JUD RPT CS(JUD) NT 6DP 1NR
02/21/96 2825 (H) DP: PORTER, VEZEY, B.DAVIS, GREEN,
BUNDE
02/21/96 2825 (H) DP: TOOHEY
02/21/96 2825 (H) NR: FINKELSTEIN
02/21/96 2826 (H) FISCAL NOTE (COURT)
02/21/96 2845 (H) FIN REFERRAL ADDED
02/21/96 2845 (H) REFERRED TO FIN
BILL: HB 484
SHORT TITLE: ENFORCE RESTITUTION ORDER AGAINST MINOR
SPONSOR(S): REPRESENTATIVE(S) THERRIAULT, Kelly
JRN-DATE JRN-PG ACTION
02/09/96 2691 (H) READ THE FIRST TIME - REFERRAL(S)
02/09/96 2692 (H) JUDICIARY
02/19/96 (H) JUD AT 1:00 PM CAPITOL 120
02/21/96 2831 (H) JUD RPT 7DP
02/21/96 2832 (H) DP: PORTER, VEZEY, FINKELSTEIN, B.DAVIS
02/21/96 2832 (H) DP: GREEN, BUNDE, TOOHEY
02/21/96 2832 (H) 3 ZERO FNS (COURT, LAW, DHSS)
02/21/96 2832 (H) REFERRED TO RLS
BILL: HB 433
SHORT TITLE: POLICE CAN INTERCEPT SOME COMMUNICATIONS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
01/19/96 2485 (H) READ THE FIRST TIME - REFERRAL(S)
01/19/96 2485 (H) STATE AFFAIRS, JUDICIARY, FINANCE
01/19/96 2485 (H) 3 ZERO FISCAL NOTES (2-ADM, DCED)
01/19/96 2485 (H) 3 ZERO FISCAL NOTES (CORR, LAW, DPS)
01/19/96 2485 (H) GOVERNOR'S TRANSMITTAL LETTER
02/06/96 (H) STA AT 8:00 AM CAPITOL 102
02/06/96 (H) MINUTE(STA)
02/08/96 (H) STA AT 8:00 AM CAPITOL 102
02/08/96 (H) MINUTE(STA)
02/09/96 2682 (H) STA RPT 2DP 2NR
02/09/96 2682 (H) DP: JAMES, GREEN
02/09/96 2682 (H) NR: WILLIS, OGAN
02/09/96 2682 (H) ZERO FISCAL NOTE (CORR)
02/09/96 2682 (H) 5 ZERO FNS(DPS, LAW, DCED,
2-ADM)1/19/96
02/09/96 2682 (H) REFERRED TO JUDICIARY
02/19/96 (H) JUD AT 1:00 PM CAPITOL 120
02/26/96 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
ROBERT MINTZ, Esq.
2808 Dilligent Circle
Anchorage, AK
Telephone: (907) 276-1278
POSITION STATEMENT: Provided information on HB 316
MICHAEL LESSMEIER
State Farm Insurance
One Sealaska Plaza, Suite 303
Juneau, Alaska 99801
Telephone: (907) 586-5912
POSITION STATEMENT: Testified in support of HB 316
ANNE CARPENETI, Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99801-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified in support of HB 316
Provided information on HB 433
LT. DENNIS CASANOVAS, Commander
Criminal Investigations Bureau
Department of Public Safety, Alaska State Troopers
5700 E Tudor Road
Anchorage, Alaska 99507-1225
Telephone: (907) 269-5757
POSITION STATEMENT: Testified in support of HB 433
GENE OTTENSTROER
P.O. Box 1059
Delta Junction, Alaska 99737
Telephone: (907) 895-4805
POSITION STATEMENT: Testified against HB 433
ACTION NARRATIVE
TAPE 96-23, SIDE A
CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting
to order at 1:05 p.m. Members present at the call to order were
Representatives Green, Bunde, Toohey, and Vezey. Representatives
Davis and Finkelstein arrived at their respective times, 1:12 p.m.
and 1:10 p.m.
HB 316 - CIVIL LIABILITY FOR IMPROPER LAWSUIT
CHAIRMAN PORTER recognized Representative Mulder as sponsor to HB
316, this was the first bill up for consideration.
REPRESENTATIVE MULDER read the sponsor statement to HB 316 into the
record. "House Bill 316 requires parties to law suits to be
truthful and responsible in their pleadings. This bill discourages
false statements in litigation and encourages responsibility by all
parties and their attorneys. It requires more careful and focused
preparation and presentation of pleadings.
This bill creates an obligation for litigants and attorneys to make
reasonable efforts to insure that claims have a probability of
succeeding. If the claim is knowingly or recklessly false, both
the attorney and the party can be assessed damages.
HB 316 requires attorneys and their clients to research their
claims to assure they are factually supported before filing a suit.
This bill will help eliminate 'boiler plate' pleadings in law suits
and encourage responsible and focused pleadings. 'Boiler plate'
pleadings include everything anyone could ever imagine could ever
have happened rather than focusing on those specific issues that
actually happened. These extraneous pleadings are expensive to
work through and are most often thrown out. They simply cause one
party to expend significant dollars to pare the filing down to the
real issues.
Many suits are often times cheaper to settle than litigate,
regardless of their merit. [And that I believe Mr. Chairman is a
real problem, a real problem we're trying to address within this
bill.] This bill does not affect suits filed in good faith. It
will, however, have a significant deterrent effect on those without
merit. A system that allows deceit to be rewarded must be changed.
This bill assigns financial responsibility to those who file suits
without probable cause, those who provide false information, those
who want to sue claims and cross claims to cloud the issues and
those who want to go on unsuccessful fishing trips. This is not
why we have, nor support a judicial system.
A jury will make the determination whether the information
presented was intentional and material. If honest errors are made,
there will be no problem. I believe that the jury can make these
decisions and that the deterrent effect of this bill will apply to
those cases that are inappropriate without inhibiting the filings
of cases believed to have merit."
REPRESENTATIVE MULDER went on to add that the focus of this bill is
to make people responsible for their litigation and to deter those
who file frivolous claims or factually inaccurate claims by making
them financially responsible for knowingly filing a false claims.
This would include somone who knowingly tried to extend a case by
simply adding further cost to the case. This legislation attempts
to make a system which is more equitable, more fair and to make
people more responsible for their actions within the court system.
He felt that this legislation would give people a greater
confidence level within the court system and would help to expedite
the hearing process.
Number 326
REPRESENTATIVE TOOHEY made a motion to move version 9-LS1013\K of
CSHB 316(JUD) as the working draft of this legislation before the
committee. Hearing no objection it was so moved.
Number 384
ROBERT MINTZ, Esq., testified from Anchorage by teleconference
regarding HB 316. He stated that the basic issue addressed by this
bill was to give injured parties effective remedies for bad faith,
civil litigation. The essence of the bill allows for people who
actually suffer harm due to abuse of the civil justice system to be
compensated for their injuries. In addition, people who cause this
harm by abusing the civil justice system, they will be forced to
pay compensation.
MR. MINTZ outlined that abuses of the justice system under this
legislation would be the following: Intentionally or maliciously
asserting false claims and allegations, or asserting claims and
allegations without first making an effort to determine whether or
not a party has a reasonable basis to do so. The standards of
conduct embodied in this bill are similar to other standards of
conduct such as under Civil Rule 11 and the common law tort of
malicious prosecution, but a significant aspect of this legislation
is that the victims of the bad faith litigation become the rule
enforcers, not the legal community. HB 316 is a departure from the
existing system of self-regulation of the legal profession. It
gives victims of unscrupulous attorneys and their clients the
ability to be compensated in cases of what ordinary people would
consider to be outrageous conduct.
MR. MINTZ noted that section (a) (1) of the bill provides for a
person (party or an attorney) shall not knowingly or recklessly
file a pleading that contains false or misleading statements of
facts or allegations. The standard employed is one that's higher
than simple negligence. Someone can't get in trouble by making a
simple mistake. They have to intentionally make a mis-statement or
they would have reason to believe these statements are untrue.
Also a reasonable person would make additional investigations into
a situation before they cast a stone, so to speak.
MR. MINTZ further outlined that sections (a) (2) and (a) (3) of the
bill are very similar to the existing Civil Rule 11 in terms of the
standard of conduct that's utilized. It requires that each claim
and defense should be well grounded in fact and supported by law.
Sections (d), (e) and (f) of the bill are a variation of the
existing malicious prosecution common law action. Currently under
common law, a person who is a victim of a malicious law suit has to
prove both, that the law suit was brought maliciously and that the
conduct of the party bringing the law suit was unreasonable. HB
316 would uncouple these requirements and would enable a person to
bring an action of malicious prosecution if either these conditions
were present.
MR. MINTZ stressed that the key difference between this bill and
existing law is that the client and attorney will be held
personally liable for damages caused by their conduct and the
person who enforces the system of conduct is the person who's hurt,
not the court system. He noted that if this bill is enacted most
attorneys will experience a minor inconvenience because of the
potential personal liability for themselves and their clients,
these attorneys will be forced to do better investigations up front
as well as, document the basis for claims and allegations prior to
asserting them.
MR. MINTZ used specific examples of how this legislation would
affect particular law suits as follows: If someone knowingly lies
to drag a person into court then this prior person will end up
paying for this. If someone beefs up a complaint with frivolous
claims to increase the settlement value, then they will end up
paying for this. If someone asserts claims without checking first
to see if they have a reasonable basis, then they'll pay for that.
If someone files a case maliciously in an attempt to extort money
because it would be cheaper for a defendant to settle than to
fight, then they'll end up paying for this too. Mr. Mintz noted
that currently there are insufficient adverse economic consequences
associated with abuses of the legal system. HB 316 is designed to
fix this.
Number 726
REPRESENTATIVE BUNDE stated he heard that for major corporations
and insurance companies the threshold for fighting a suit is about
$50,000, that it's cheaper to settle a frivolous lawsuit up to
$50,000 than it is to go to court. Representative Bunde asked Mr.
Mintz if he could confirm this.
MR. MINTZ answered that this really depends. The company which he
works for usually stands on principle, so he said their threshold
is lower than $50,000. The claim would have to be less than
$10,000 to pay extortion money. On the other hand, he knew of
situations where people were personally exposed to significant,
potential liability which was unfounded and the payout was a lot
more than $50,000 rather than fight it. He could cite cases over
a $1 million was spent in defense costs, prior to completion of
discovery and the case was ultimately settled under $20,000. Mr.
Mintz also noted cases where dozens of counts were brought and one
or two of them had any substance, but it cost literally hundreds of
thousands of dollars to dispose of the frivolous claims.
Number 887
REPRESENTATIVE BUNDE asked Mr. Mintz about the previous year and
asked him to cite cases that he felt would have fallen under the
provision of this bill as a frivolous law suit.
MR. MINTZ said he was personally aware of at least a couple of
cases. He wished to punctuate this by saying that he was an
attorney and that he did practice law as a partner in a local law
firm before he went to work for a real estate company. In his
practice he said he hardly ran into what he would characterize as
a "scum-bag" attorney who was bulking up and filing frivolous
complaints, but he did point out that this happens. He said he's
run into situations like this in the business world rather than the
law field. Mr. Mintz noted that it finally dawned on him that
nothing bad happens to people who engage in this kind of deceptive
conduct.
Number 982
REPRESENTATIVE FINKELSTEIN asked about a situation where someone
has suffered an injury, the injury is no doubt real, but the
question becomes who is at fault. Without the discovery
proceedings how would somebody go about figuring out who to sue, if
for instance, some of the parties involved might be unwilling to
divulge any information without the discovery process.
MR. MINTZ stated that the effect of this bill on the legitimate
practitioner would be negligible. It only requires that an
attorney first must make an effort to determine if there is a basis
for the claims and the allegations. Based on this the attorney
must then assert claims and allegations as long as this attorney
does not have information which make these assertions false. Also,
if this attorney knows they don't have the predicate or the
requisite elements to prove a claim, then this claim should not be
made.
Number 1099
REPRESENTATIVE MULDER stated that there was not a fiscal note
attached to this legislation, but that there was a like bill in the
senate and the fiscal note corresponding to this senate version
would be made available to the committee.
Number 1120
MICHAEL LESSMEIER, Esq., representing State Farm testified on HB
316. Mr. Lessmeier stated that this bill was a truth bill and a
responsibility bill. This legislation ensures a level of
responsibility in civil litigation which doesn't currently exist.
The second aspect of this bill is the truth aspect and this is
under subsection (b) which addresses a person who essentially
appears in court and lies. What happens presently is that there
isn't a disincentive for doing this, except that this person's
credibility may suffer in front of a jury. This provision here
would force every lawyer to inform their clients that if they lie
in court, the court will throw them out on whatever claim in
conjunction they assert. It creates a more open and shut case
situation, rather than the jury weighing this person's credibility
against the evidence.
MR. LESSMEIER noted that this section wouldn't probably be used
very often, but it would be an incredible deterrent to what he
thought happens quite frequently in the courts right now.
Personally, Mr. Lessmeier said he represents doctors, a hospital,
etc. and he is frequently exposed to cases where someone will tell
him that they can make this as expensive for Mr. Lessmeier and his
client as they can, and that it would be in their best interest to
settle this case. He noted that just in the last month this had
occurred. He also added that the cases which they see this type of
behavior are not always frivolous, but cases where a person may
have a legitimate basis, for example, someone has been injured in
an automobile accident and under oath they say they have not been
involved in a prior accident, but later on it's found out that they
have. This occurs with an incredible amount of frequency. A
provision related to these types of situations was inserted in this
legislation, which would be self-effectuating, since most of the
Judges will not get involved with sanctioning someone for conduct
like this. Hence, this is why they inserted the truth provision
under subsection (b). If a jury finds someone has lied it must be
intentional, material and it has to be false, then they can just
send them home on this claim.
Number 1296
REPRESENTATIVE BUNDE asked about the penalties which might be
asserted under these situations.
MR. LESSMEIER stated that penalties had to do with the
responsibility provision of this legislation. The way this bill is
drafted, if it's discovered that the party has lied, rather than
the attorney, then in the very same action this can be asserted.
If it is established that damages were incurred as a result, these
damages could be recovered. If the attorney was involved in this
dishonesty, a separate cause of action would have to be brought.
Number 1355
REPRESENTATIVE FINKELSTEIN asked if this self-effectuating nature
of the legislation would add to the already bogged-down cases in
the legal system.
MR. LESSMEIER said he didn't see this happening. Once a false or
inconsistent statement has been made, under subsection (b) this
argument would be made to the jury and the jury would be instructed
on this particular issue. It shouldn't bog the system down at all.
It should be easy to quantify the damages that someone has
suffered, once the lie or false statement has been discovered.
REPRESENTATIVE FINKELSTEIN used the O.J. Simpson trial as an
example of constant discussions regarding whether or not something
was improper.
MR. LESSMEIER pointed out that this subsection, because it was
self-effectuating, it would be much quicker than a judicial
decision and has all of the safeguards that are inherent in a
decision by a group of peers.
REPRESENTATIVE FINKELSTEIN asked how this could be done without
biasing the rest of the case.
MR. LESSMEIER responded that this legislation deals with civil
actions and it would deal only with the issue of negligence.
Credibility affects some issues, but not others, for example,
credibility wouldn't affect how an accident occurred. How the
accident occurred may not be in dispute. The effect of this bill
in a large part would be a deterrent.
Number 1612
REPRESENTATIVE FINKELSTEIN asked if anyone would be testifying from
the Department of Law. He also asked if there was an
administration position on this legislation.
REPRESENTATIVE MULDER responded that he was not aware of the
administration having a position on this legislation.
Number 1630
REPRESENTATIVE VEZEY stated that he was curious what constitutional
questions this legislation might raise.
MR. MINTZ said he didn't see a constitutional issue in terms of
rights or civil liberties. There is an issue under the Alaska
constitution as to whether or not this legislation could be
construed as a rule change, which would require a large majority of
the legislature to enact, but he stated they tried to craft this
legislation carefully in such a way as to create causes of action,
rather than changes to court rules.
Number 1672
REPRESENTATIVE FINKELSTEIN pointed out in the bill drafting
analysis that they interpreted this legislation as changing court
rules.
MR. MINTZ said that in the one section pertaining to loosing a
claim for lying, the legislative drafters took this position. He
referred to section 3, 190 (b) more specifically has the effect of
amending Alaska Rule 37 and 190 (b), "the court determines that a
party to a civil action has intentionally made a false statement of
material fact, the court shall enter judgment against the party
making the false statement on the issue to which the false
statement relates."
Number 1733
REPRESENTATIVE BUNDE made a motion to move CSHB 316 (JUD) from the
House Judiciary Committee with individual recommendations and an
enclosed fiscal note. Hearing no objection it was so moved.
HB 484 - ENFORCE RESTITUTION ORDER AGAINST MINOR
CHAIRMAN PORTER then introduced HB 484 as the next order of
business and invited Representative Gene Therriault to testify.
Number 1851
REPRESENTATIVE GENE THERRIAULT read the sponsor statement regarding
HB 484 into the record.
"HB 484 would allow the courts to convert a restitution order in a
juvenile criminal case into a civil judgment. The bill is in
response to a recent Alaska Court of Appeals case, R.I. v. State,
which held that a Superior Court judge lacks statutory authority to
treat a restitution order as if it were a civil judgment in a
juvenile case. AS 12.55.051(d) grants the state such authority in
adult cases.
A civil judgment is especially helpful when the offender fails or
refuses to make restitution payments. A civil judgment would allow
the victim in such cases to execute against the offender's assets,
including his or her permanent fund dividend, in order to enforce
the restitution order without going to civil court and obtaining a
civil judgment for the damages. Currently, if a juvenile does not
pay a restitution order by his or her 19th birthday, the court has
no more jurisdiction over the juvenile and the restitution order is
basically moot. A victim must go to civil court, prove again that
the juvenile was liable for the damages and obtain a civil judgment
against the juvenile offender. This seems like an unnecessary and
costly burden for the victim, who has already been hurt once."
Number 1915
REPRESENTATIVE THERRIAULT pointed out that there is a statute in
place which will convert an adult's restitution order into a civil
judgment and this legislation attempts to do the same for
juveniles.
Number 1949
REPRESENTATIVE BUNDE asked if there were cases in particular that
Representative Therriault could cite where a juvenile actually got
out from under a restitution order in the manner outlined.
REPRESENTATIVE THERRIAULT noted the case mentioned in the sponsor
statement, R.I. v. State, where the individual did not make the
restitution payments. The court, under the impression that they
had the authority to convert this restitution, did so, but on
appeal this effort was overturned.
Number 2020
REPRESENTATIVE GREEN asked about a situation where a person who had
a judgment against them at 17 is required to pay restitution and he
then turns 19 years old, does this same order of restitution follow
an individual.
REPRESENTATIVE THERRIAULT responded by saying that a representative
from the Department of Law could answer this, but it was his
understanding that an individual who has been making restitution
payments, but has a balance owing, the victim could move to convert
the remainder into a civil judgment once the juvenile turns 19. He
imagined the court would carry forward a payment schedule. In
addition, if a juvenile has made restitution and there's still an
amount owing, the victim does not have to request that this
conversion be made if they think they've been made whole.
Number 2108
ANNE CARPENETI, Department of Law, Criminal Division, testified
that the department supports this bill. In the past, courts have
been converting orders of restitution against minors into civil
judgments, but lately one of these cases had been taken up on
appeal. The Court of Appeals said that there needed to be a
specific statute to authorize the courts to do this conversion in
juvenile cases. The statute to do this in adult cases cannot be
applied to juvenile cases. This case's opinion cried out for help
beyond what the court's powers are at this time. She noted that
this was why the department supports this bill.
Number 2150
CHAIRMAN PORTER asked if a judge could provide a restitution order
for a parent to help pay the cost of this restitution under a
statute which he referenced from last session.
MS. CARPENETI said that she would like to look at the statute and
said that the reason why this last session legislation passed was
to allow increased parental responsibility, but she reserved the
chance to look at it first.
Number 2190
REPRESENTATIVE THERRIAULT stated that his recollection about this
section of the statute, in holding the parents liable for a certain
dollar amount made this automatic for a certain amount of the
damages. He thought the restitution order would be against the
person who caused the damage and wouldn't apply to the parents
automatically by the provisions of the bill passed last year. By
statute, they stated that the parents can be liable up to a maximum
of $10,000. It was his opinion that restitution would be for a
monetary value that the victim has not yet recouped. If the
judgment against the parent already covered the damages, he didn't
know that there would be room there for restitution.
CHAIRMAN PORTER stated that the judgment or restitution order is
only as good as the ability to recoup the money. It seems as
though if there was an indication of an inability to pay on the
part of the minor it would be of assistance to the victims to allow
the judge to use the authority of this statute to order the parents
to pay, if the juvenile can't.
REPRESENTATIVE THERRIAULT thought that Chairman Porter was right.
If the dollar amount is such that the juvenile can't pay, the court
could enter an order of restitution. If restitution is not paid,
then the victim would have the right then to exercise the other
portion of the statute which allows for the parent to pay up to
$10,000 depending on the circumstance.
Number 2276
MS. CARPENETI stated she would get back to Chairman Porter after
she looked at the statute to see whether or not another lawsuit
would need to be initiated for restitution.
CHAIRMAN PORTER felt that this shouldn't hold up the passage of the
bill out of committee, but as the bill progresses, if it's found
that the statute doesn't already allow for the parents to assume
some responsibility for restitution, then he recommended the
expansion of this use to this particular legislation.
Number 2312
REPRESENTATIVE GREEN made a motion to move HB 484, version (C) with
a zero fiscal note and individual recommendations from the House
Judiciary Committee. Hearing no objections, it was so moved.
HB 433 - POLICE CAN INTERCEPT SOME COMMUNICATIONS
Number 2337
CHAIRMAN PORTER then introduced HB 433, for testimony purposes and
called on Lieutenant Dennis Casanovas who testified by
teleconference from Anchorage.
LT. DENNIS CASANOVAS, Commander, Criminal Investigations Bureau,
stated that the Department of Public Safety supports this bill
which adds an exemption to AS 42.23.20. This exemption would grant
Alaska law enforcement officers additional resources to deal with
crisis situations such as, barricaded suspects and hostage
incidences.
LT. CASANOVAS stated that currently, law enforcement officers
respond to such crisis situations many times without a clear
understanding of the number of participants, the identity of the
perpetrators involved, the types of weapons or explosives which may
be available, the number of hostages which have been put in harms
way and the extent of injuries to those people involved. These
crisis situations involve rapidly changing circumstances and rely
heavily on what information law enforcement negotiators can quickly
learn from near-by witnesses and or from the suspect, should the
suspect wish to communicate with the police.
LT. CASANOVAS stressed that this bill would allow law enforcement
officers the ability to intercept, listen or record communications
which a hostage taker may have with their hostages or a barricaded
suspect would have with themselves. Such communications may
identify what the hostage taker is planning to do to their victims
or allow law enforcement personnel to know in advance if the
suspect is planning increasing acts of violence or escape. Such
communications may also identify whether the negotiator is being
effective in their efforts, or need to change their tactics to
resolve the crisis situation safely and without further injury to
the suspect, hostages, the general public, as well as, to emergency
response personnel and law enforcement officers who may have to
make a forced entry to the structure to make arrests, free hostages
or render aid.
LT. CASANOVAS noted that the Alaska state troopers respond to
approximately four incidents per year, where a suspect refuses to
exit or surrender at the direction of a police officer, holds
another person hostage or threatens the illegal use of an
explosive. With passage of this legislation the Alaska law
enforcement agencies would be better equipped to resolve crisis
situations in a more efficient and safe manner than they are today.
REPRESENTATIVE VEZEY asked about the significance of the term
barricaded. He said he didn't understand, would they not be able
to gain this information if they didn't erect a barricade.
LT. CASANOVAS said that a barricaded situation is what police
officers usually become involved with, a person has made some
efforts to prevent them from making forced entry into a structure.
This is why this language was included.
TAPE 96-23, SIDE B
Number 001
REPRESENTATIVE VEZEY said maybe he doesn't understand AS 42.20.300
very well. He asked if these acts are specifically outlawed at
this time.
REPRESENTATIVE FINKELSTEIN asked if this is just an exception to
when you have to get a warrant.
Number 036
MS. CARPENETI outlined for the committee that AS 42.20 deals with
circumstances which someone is not allowed to eavesdrop on
conversations without these exemptions, this legislation adds this
particular exemption to a list of others exemptions which are
allowed for eavesdropping. There are circumstances where a police
officer could get a warrant to intercept or to listen to
conversations. Generally, under emergency situations, the warrant
concept would be too time consuming.
LT. CASANOVAS stated that the main issue in these emergency
situations is that they unfold very quickly. There are not a lot
of known details, such as who the perpetrator is or what they have
actually done. This makes it very difficult to make an application
to the court, both logistically during any 24 hour day and to
provide an ample amount of facts for the court to evaluate in order
to allow for law enforcement to intercept these communications.
It's been described that if these exemptions were not on the books,
consequently, if law enforcement were to do these things then they
could be charged with a misdemeanor offense. It was their intent
to add this exemption, which would make it legal for a law
enforcement agency to try to safely resolve these crisis
situations.
Number 147
REPRESENTATIVE TOOHEY asked if there was not a 24 hour on-call
system, such as with hospital personnel, in the court system to
provide a warrant under these circumstances.
LT. CASANOVAS again pointed out that some of these incidences take
place in very rural areas and a police officer is not always able
to obtain enough information regarding a particular incident to
determine the need for a warrant as under the usual circumstances.
REPRESENTATIVE TOOHEY asked if the void was big enough to warrant
this exemption.
Number 221
MS. CARPENETI said that this issue arose when a question was asked
of a D.A. in Anchorage and it was made clear that an exemption
needed to exist to take care of this situation. It was assumed
that of course a law enforcement official could surreptitiously
record a suspect. After examination of the statute it was clear
that an exemption was needed so that under an emergency situation,
someone is able to immediately defuse a dangerous situation which
could get out of hand.
Number 321
REPRESENTATIVE GREEN asked if this exemption could be drafted
without listing it into the already existing list of exemptions to
basically say that a law enforcement official has the right under
an emergency situation to do certain things.
MS. CARPENETI stated they had tried to be very specific so as not
to make too broad of an exemption to the basic rule that
surreptitious eavesdropping is generally not allowed in the state
of Alaska. She supposed that a more general exemption could be
considered.
REPRESENTATIVE GREEN was concerned that if an amendment is drafted
for an individual who is barricaded, but say for example, a person
who was in a hallway they might not come under the same exemption
because of a language interpretation.
Number 350
MS. CARPENETI noted that these were situations which the law
enforcement department brought to them as problem areas.
LT. CASANOVAS added that the term "barricaded" could mean that
there is simply a wall between the suspect and a law enforcement
official. This issue came up because these barricaded individuals
would be the most problematic and in order to get close enough to
possibly record conversations or to hear what they're doing or
talking about, this is why the barricade term came up.
REPRESENTATIVE VEZEY asked if there might be a more flexible term
used, rather than barricade. He also suggested that the phrase
"firearms" be added to another clause which addressed explosives.
LT. CASANOVAS said he would not have any objections to this
addition of the term "firearms" to the section Representative Vezey
had referenced.
Number 457
REPRESENTATIVE BUNDE suggested the use of the term "deadly weapon."
MS. CARPENETI requested that she be able to review this amendment
regarding the barricade terminology, as well as deadly weapon term,
since they might open up these clauses farther beyond what is
permissible.
Number 500
CHAIRMAN PORTER agreed that these changes could make it too
restrictive and noted that the word barricaded is more a term of
art used by law enforcement individuals. He requested that the
Department of Law and the Department of Public Safety revise this
language as suggested and then the committee could take the bill up
again.
Number 554
REPRESENTATIVE FINKELSTEIN cautioned that they shouldn't try to
expand the language too far, since it could make the clause too
restrictive.
Number 639
GENE OTTENSTROER testified from Delta Junction by teleconference.
He said he took offense with the term "Peace Officer" used in this
legislation. He stated that this should be rephrased to allow for
the term Law Enforcement Officers instead, because they're not
Peace Officers. Mr. Ottenstroer also didn't agree with this bill
because it goes against the constitution under the Privacy Act. He
said it should require a court order with no exceptions. The
individual should be protected.
Number 754
REPRESENTATIVE BUNDE stated, for the record, that if he was ever
held hostage in a dangerous situation he didn't want the police
officer to have a momentary pause in attempting to rescue him.
ADJOURNMENT
CHAIRMAN PORTER adjourned the House Judiciary Committee meeting at
2:10 p.m.
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