Legislature(1993 - 1994)

03/26/1993 01:00 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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               HOUSE JUDICIARY STANDING COMMITTEE                              
                         March 26, 1993                                        
                            1:00 p.m.                                          
                                                                               
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
  Representative Brian Porter, Chairman                                        
  Representative Jeannette James, Vice-Chair                                   
  Representative Pete Kott                                                     
  Representative Gail Phillips                                                 
  Representative Cliff Davidson                                                
  Representative Jim Nordlund                                                  
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
  Representative Joe Green                                                     
                                                                               
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
  HB 160    "An Act relating to the time for filing certain                    
            civil actions; and providing for an effective                      
            date."                                                             
                                                                               
            PASSED OUT OF COMMITTEE WITH A DO PASS                             
            RECOMMENDATION                                                     
                                                                               
  SB 54     "An Act relating to violations of laws by                          
            juveniles, to the remedies for offenses and                        
            activities committed by juveniles and to records                   
            of those offenses, and to incarceration of                         
            juveniles who have been charged, prosecuted, or                    
            convicted as adults; and providing for an                          
            effective date."                                                   
                                                                               
            HEARD AND HELD IN COMMITTEE                                        
                                                                               
  HB 192    "An Act relating to advertising by construction                    
            contractors."                                                      
                                                                               
            CANCELLED - NOT YET REFERRED TO COMMITTEE                          
                                                                               
  WITNESS REGISTER                                                             
                                                                               
  REPRESENTATIVE GAIL PHILLIPS                                                 
  Alaska State Legislature                                                     
  State Capitol, Room 216                                                      
  Juneau, Alaska  99801-1182                                                   
  Phone:  465-2689                                                             
  Position Statement: Read sponsor statement for HB 160                        
                                                                               
  RUSS WINNER, Attorney                                                        
  Alaska Trial Lawyers Association                                             
  Alaska Action Trust                                                          
  900 West Fifth Avenue, Suite 700                                             
  Anchorage, Alaska 99501                                                      
  Phone:  277-9522                                                             
  Position Statement: Opposed HB 160                                           
                                                                               
  RICHARD RITTER                                                               
  American Institute of Architects, Alaska Chapter                             
  Alaska Professional Design Council                                           
  800 Glacier Avenue, Suite A                                                  
  Juneau, Alaska 99801                                                         
  Phone:  586-1371                                                             
  Position Statement: Supported HB 160                                         
                                                                               
  SENATOR RICK HALFORD                                                         
  Alaska State Legislature                                                     
  State Capitol, Room 111                                                      
  Juneau, Alaska 99801-1182                                                    
  Phone:  465-4958                                                             
  Position Statement:  Prime sponsor of SB 54                                  
                                                                               
  DEAN GUANELI                                                                 
  Assistant Attorney General                                                   
  and Criminal Division Administrator                                          
  Department of Law                                                            
  P. O. Box 110300                                                             
  Juneau, Alaska 99811-0300                                                    
  Phone:  465-3428                                                             
  Position Statement: Discussed SB 54                                          
                                                                               
  CHARLIE COLE                                                                 
  Attorney General                                                             
  Department of Law                                                            
  P. O. Box 110300                                                             
  Juneau, Alaska 99811-0300                                                    
  Phone:  465-3600                                                             
  Position Statement: Discussed SB 54                                          
                                                                               
  LIZ DODD                                                                     
  American Civil Liberties Union, Alaska Chapter                               
  100 Parks Street                                                             
  Juneau, Alaska 99801                                                         
  Phone:  463-2601                                                             
  Position Statement: Opposed SB 54                                            
                                                                               
  PREVIOUS ACTION                                                              
                                                                               
  BILL:  HB 160                                                                
  SHORT TITLE:  LIABILITY OF DESIGN/CONSTRUCTION PROS                          
  BILL VERSION: HB 160 AM S                                                    
  SPONSOR(S):   REPRESENTATIVE(S) GREEN,Phillips,Larson,                       
  Hudson,Porter,Bunde,Vezey,Mulder,Kott,James                                  
                                                                               
  TITLE: "An Act relating to the time for filing certain civil                 
  actions based on defect in an improvement to real property;                  
  and providing for an effective date."                                        
                                                                               
  JRN-DATE     JRN-PG               ACTION                                     
  05/01/03              (S)   JUD AT 12:00 PM BELTZ ROOM 211                   
  02/17/93       362    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  02/17/93       362    (H)   LABOR & COMMERCE, JUDICIARY                      
  02/17/93       373    (H)   COSPONSOR(S): VEZEY, MULDER                      
  02/19/93       396    (H)   COSPONSOR CORRECTIONS:                           
                              PHILLIPS, LARSON                                 
  02/19/93       397    (H)   HUDSON, PORTER, BUNDE                            
  02/19/93       397    (H)   COSPONSOR(S): KOTT                               
  03/02/93              (H)   L&C AT 03:00 PM CAPITOL 17                       
  03/02/93              (H)   MINUTE(L&C)                                      
  03/03/93       517    (H)   L&C RPT  5DP                                     
  03/03/93       518    (H)   DP: PORTER, HUDSON,SITTON,                       
                              WILLIAMS,GREEN                                   
  03/03/93       518    (H)   -2 ZERO FISCAL NOTES (COURT,                     
                              LAW) 3/3/93                                      
  03/03/93       526    (H)   COSPONSOR(S): JAMES                              
  03/26/93              (H)   JUD AT 01:30 PM CAPITOL 120                      
                                                                               
                                                                               
  BILL:  SB 54                                                                 
  SHORT TITLE:  OFFENSES BY JUVENILE OFFENDERS                                 
  BILL VERSION: CSSB 54(FIN)                                                   
  SPONSOR(S):   SENATOR(S) HALFORD,Phillips,Leman,Taylor,                      
  Miller; REPRESENTATIVE(S) Porter,Bunde                                       
                                                                               
  TITLE: "An Act relating to violations of laws by juveniles,                  
  to the remedies for offenses and activities committed by                     
  juveniles and to records of those offenses, and to                           
  incarceration of juveniles who have been charged,                            
  prosecuted, or convicted as adults; and providing for an                     
  effective date."                                                             
                                                                               
  JRN-DATE     JRN-PG               ACTION                                     
  01/22/93       122    (S)   READ THE FIRST TIME/REFERRAL(S)                  
  01/22/93       122    (S)   JUDICIARY, FINANCE                               
  02/08/93              (S)   JUD AT 01:30 PM BELTZ ROOM 211                   
  02/08/93              (S)   MINUTE(JUD)                                      
  02/17/93              (S)   JUD AT 01:30 PM BELTZ ROOM 211                   
  02/17/93              (S)   MINUTE(JUD)                                      
  02/19/93       408    (S)   JUD RPT  CS  3DP 1DNP     NEW                    
                              TITLE                                            
  02/19/93       408    (S)   ZERO FISCAL NOTES TO SB (LAW,                    
                              DPS, CORR)                                       
  02/19/93       408    (S)   FISCAL NOTE TO SB (ADM - 2)                      
  02/24/93       461    (S)   FISCAL NOTES TO CS (COURT,                       
                              CORR)                                            
  02/24/93       461    (S)   ZERO FISCAL NOTES TO CS (DHSS,                   
                              LAW)                                             
  02/22/93              (H)   MINUTE(JUD)                                      
  02/24/93              (S)   FIN AT 09:00 AM SENATE FINANCE                   
                              518                                              
  02/25/93              (S)   FIN AT 09:00 AM SENATE FINANCE                   
                              518                                              
  02/26/93       499    (S)   FIN RPT  CS  6DP 1NR      NEW                    
                              TITLE                                            
  02/26/93       500    (S)   FN TO FIN CS (ADM-2, COURT)                      
  02/26/93       500    (S)   PREVIOUS CS ZERO FNS APPLY                       
                              (LAW, DHSS)                                      
  02/26/93       500    (S)   PREVIOUS SB ZERO FN APPLIES                      
                              (DPS)                                            
  02/26/93              (S)   FIN AT 09:00 AM SENATE FINANCE                   
                              518                                              
  02/26/93              (S)   MINUTE(FIN)                                      
  02/26/93              (S)   RLS AT 01:15 PM FAHRENKAMP ROOM                  
                              203                                              
  02/26/93              (S)   MINUTE(RLS)                                      
  03/01/93       538    (S)   PREVIOUS FN APPLIES TO CS                        
                              (CORR)                                           
  03/01/93       540    (S)   RULES TO CALENDAR  3/1/93                        
  03/01/93       541    (S)   READ THE SECOND TIME                             
  03/01/93       542    (S)   FIN  CS ADOPTED Y11 N8 E1                        
  03/01/93       543    (S)   THIRD READING 3/2 CALENDAR                       
  03/02/93       561    (S)   READ THE THIRD TIME  CSSB 54                     
                              (FIN)                                            
  03/02/93       562    (S)   RETURN TO 2ND FOR AM 1 FLD  Y9                   
                              N10 E1                                           
  03/02/93       567    (S)   RETURN TO 2ND FOR AM 2 FLD  Y9                   
                              N10 E1                                           
  03/02/93       568    (S)   RETURN TO 2ND FOR AM 3 FLD  Y9                   
                              N10 E1                                           
  03/02/93       568    (S)   RETURN TO 2ND FOR AM 4 FLD  Y9                   
                              N10 E1                                           
  03/02/93       569    (S)   RETURN TO 2ND FOR AM 5 FLD  Y9                   
                              N10 E1                                           
  03/02/93       570    (S)   RETURN TO 2ND FOR AM 6 FLD  Y9                   
                              N10 E1                                           
  03/02/93       571    (S)   (S) ADOPTED LETTER OF INTENT                     
  03/02/93       571    (S)   PASSED Y12 N7 E1                                 
  03/02/93       571    (S)   EFFECTIVE DATE PASSED Y14 N5 E1                  
  03/02/93       572    (S)   Kerttula  NOTICE OF                              
                              RECONSIDERATION                                  
  03/03/93       595    (S)   RECONSIDERATION NOT TAKEN UP                     
  03/03/93       596    (S)   TRANSMITTED TO (H)                               
  03/05/93       538    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  03/05/93       538    (H)   JUDICIARY, FINANCE                               
  03/12/93       629    (H)   CROSS SPONSOR(S): PORTER                         
  03/16/93              (H)   MINUTE(HES)                                      
  03/24/93       765    (H)   CROSS SPONSOR(S): BUNDE                          
  03/26/93              (H)   JUD AT 01:30 PM CAPITOL 120                      
                                                                               
                                                                               
  BILL:  HB 192                                                                
  SHORT TITLE:  ADVERTISING BY UNREGISTERED CONTRACTORS                        
  BILL VERSION: SSHB 192                                                       
  SPONSOR(S):   REPRESENTATIVE(S) MULDER                                       
                                                                               
  TITLE: "An Act relating to construction contractors."                        
                                                                               
  JRN-DATE     JRN-PG               ACTION                                     
  03/02/93       505    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  03/02/93       505    (H)   STATE AFFAIRS, JUDICIARY,                        
                              FINANCE                                          
  03/20/93              (H)   STA AT 08:00 AM CAPITOL 102                      
  03/24/93       760    (H)   SPONSOR SUBSTITUTE INTRODUCED                    
                              -REFERRALS                                       
  03/24/93       760    (H)   STATE AFFAIRS, JUDICIARY,                        
                              FINANCE                                          
  03/26/93              (H)   JUD AT 01:30 PM CAPITOL 120                      
                                                                               
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
  TAPE 93-42, SIDE A                                                           
  Number 000                                                                   
                                                                               
  The House Judiciary Standing Committee meeting was called to                 
  order at 1:55 p.m., on March 26, 1993.  A quorum was                         
  present.  Chairman Porter announced that HB 160 was the                      
  first item of business before the committee.                                 
                                                                               
  HB 160:  LIABILITY OF DESIGN/CONSTRUCTION PROS                               
                                                                               
  Number 026                                                                   
                                                                               
  REPRESENTATIVE GAIL PHILLIPS read a sponsor statement on                     
  behalf of Rep. Green, who was absent.  She said that HB 160                  
  would amend the time period within which a person could                      
  bring legal action against design and construction                           
  professionals.  She mentioned that the time period was                       
  called the "statute of repose," which she said was similar                   
  to the statute of limitations and had been adopted in 45                     
  other states.                                                                
                                                                               
  REPRESENTATIVE PHILLIPS commented that the fifth Alaska                      
  Legislature had enacted a statute of repose with a six-year                  
  limitation.  However, she stated that in 1988, the Alaska                    
  Supreme Court found that the statute was unconstitutional.                   
  She said that HB 160 addressed the court's concerns by                       
  expanding the list of those involved in the design and                       
  construction process.  She said that the sponsor, Rep.                       
  Green, believed that without a time limit for filing legal                   
  actions, design professionals and others in the construction                 
  trade were subject to an indefinite and unfair period of                     
  liability.                                                                   
                                                                               
  REPRESENTATIVE PHILLIPS noted that after substantial                         
  completion of a project, the integrity of a structure could                  
  be adversely affected by poor maintenance, improper                          
  operation or alteration -- factors for which a designer or                   
  builder should not be held responsible.  She commented that                  
  HB 160 provided for a ten-year statute of repose.  She added                 
  that the bill did not grant designers and builders immunity,                 
  at any time, from injury or damage as the result of gross                    
  negligence.  She cited a 1988 national study which found                     
  that 96.8% of all claims addressed by the bill were filed                    
  within ten years of a project's completion.                                  
                                                                               
  REPRESENTATIVE PHILLIPS stated that under HB 160's                           
  provisions, within ten years after a project's completion,                   
  even the most frivolous claim could still be filed.  After                   
  ten years, however, plaintiffs would have to establish gross                 
  negligence in order to have a case, she said.  She indicated                 
  the sponsor's opinion that suits filed more than ten years                   
  after a project's completion cost architects, engineers, and                 
  contractors unreasonable time, energy, productivity, and                     
  financial resources.                                                         
                                                                               
  Number 086                                                                   
                                                                               
  CHAIRMAN BRIAN PORTER mentioned that HB 160 had been heard                   
  by the House Labor and Commerce Committee, where it received                 
  five "do pass" votes.                                                        
                                                                               
  Number 097                                                                   
                                                                               
  RUSS WINNER, an ANCHORAGE ATTORNEY, testified on behalf of                   
  the ALASKA TRIAL LAWYERS ASSOCIATION.  He cited his                          
  background as a law professor, and said that he was now in                   
  private practice.  He called the members' attention to a                     
  position paper which he had written on behalf of the Alaska                  
  Action Trust.  (A copy of Mr. Winner's position paper may be                 
  found in the House Judiciary Committee Room, Capitol Room                    
  120, and after the adjournment of the second session of the                  
  18th Alaska State Legislature, in the Legislative Reference                  
  Library.)                                                                    
                                                                               
  MR. WINNER said that HB 160 suffered from the same                           
  infirmities as the law which had been struck down by the                     
  Alaska Supreme Court.  He predicted that, if enacted, HB 160                 
  would be deemed unconstitutional as well.  He called the                     
  bill bad public policy which did not serve its intended                      
  purposes.  He stated that in 1967, the Alaska Legislature                    
  had enacted a six-year statute of repose for design                          
  professionals.  He noted that the law had provided no                        
  protection for owners or "material men," or suppliers of                     
  construction products.  That law, he said, was repeatedly                    
  attacked in court.                                                           
                                                                               
  MR. WINNER noted that trial courts uniformly found the                       
  statute to violate equal protection provisions in the                        
  Constitution.  He commented that none of these cases ever                    
  reached the Supreme Court.  He stated that in 1988, the                      
  Alaska Supreme Court decided a case known as Turner v.                       
  Scales, and found the statute of repose to be                                
  unconstitutional.  He said that the court found that the                     
  rights of injured plaintiffs to bring lawsuits should not be                 
  lightly discarded by the legislature.  He noted that the                     
  court ruled that the purpose of the 1967 statute of repose                   
  was to encourage construction in Alaska.                                     
                                                                               
  MR. WINNER said that the court found the law did not serve                   
  its purpose well.  He stated that one reason the court found                 
  the law did not serve its intended purpose was that it did                   
  not cover owners, lessees, contractors, or material men.                     
  Instead, he noted, it only protected design professionals.                   
  The court found the law to be special interest legislation.                  
  He said that the court was also troubled by the fact that                    
  the law would have the effect of transferring liability from                 
  the design professionals to those who were not protected                     
  under the statute of repose, resulting in disincentives to                   
  construction.                                                                
                                                                               
  MR. WINNER noted that tort laws had changed since 1988, and                  
  said that proponents of HB 160 felt that those changes would                 
  cause the Supreme Court to have a different interpretation                   
  of the statute of repose now.  He expressed his disagreement                 
  with the proponents of HB 160 on that point.  He mentioned                   
  that in 1986, the legislature had enacted tort reform.  One                  
  year later, he added, voters enacted pure several liability,                 
  in which a plaintiff could only recover a defendant's                        
  percentage of fault.                                                         
                                                                               
  MR. WINNER stated that the proponents of HB 160 were asking                  
  the legislature to reenact essentially the same statute                      
  which was earlier struck down by the Supreme Court.  He                      
  mentioned that HB 160 contained some changes from the                        
  earlier law.  The statute of repose was increased from six                   
  years to ten years, he noted, and contractors were added to                  
  the group of protected individuals.  Owners, lessees, and                    
  material men continued to be excluded from the protected                     
  class, he said.                                                              
                                                                               
  MR. WINNER commented that he found the bill's statement of                   
  purpose confusing and weak.  He expressed his opinion that                   
  HB 160's purpose was to encourage construction activities in                 
  the state, by reducing lawsuits and insurance premiums.  He                  
  cited a letter to Senator Kelly from the Alaska Professional                 
  Design Council which mentioned that particular purpose.  He                  
  believed HB 160 had substantial problems, given that intent.                 
                                                                               
  MR. WINNER mentioned the voter initiative of 1987, regarding                 
  tort reform, which became effective in 1989.  He said that                   
  the courts had construed that initiative to mean that a                      
  plaintiff could choose to not sue all of the responsible                     
  parties.  Further, the courts had held that a defendant                      
  could bring in a third-party defendant.  At that point, he                   
  said, fault would be allocated among all the parties                         
  involved in the litigation.  If an original defendant did                    
  not bring in a third-party defendant, he added, that third-                  
  party defendant's fault could not be allocated in court.                     
                                                                               
  MR. WINNER stated that if the courts did not allow for                       
  defendants to bring in third-party defendants, then                          
  plaintiffs could choose whichever person had a "deep                         
  pocket."  The purpose of tort reform, to eliminate "deep                     
  pockets" and adopt several liability, dictated that result,                  
  he noted.                                                                    
                                                                               
  MR. WINNER cited an example of what might happen if HB 160                   
  was to pass.  He discussed the roof of a building collapsing                 
  eleven years after a building was completed, resulting in                    
  people being injured or killed.  A plaintiff could only sue                  
  the building's owner, lessee, or material men, not the                       
  architects or engineers.  He said that the unprotected                       
  professionals would not be able to bring in the design                       
  professionals as third-party defendants, because of the                      
  provisions of HB 160.  Therefore, he said, HB 160 would                      
  force the unprotected individuals to bear all of the                         
  liability.                                                                   
                                                                               
  MR. WINNER expressed his opinion that the problem the court                  
  found in Turner v. Scales still existed.  He predicted that                  
  if enacted, HB 160 would be struck down again by the Supreme                 
  Court.  He called the bill a disincentive to construction.                   
  He stated that under current law, owners, lessees, and                       
  material men could share liability with design                               
  professionals, if those design professionals were partly at                  
  fault.  House Bill 160 would prevent that, however.                          
                                                                               
  Number 520                                                                   
                                                                               
  MR. WINNER reiterated his assumption that HB 160 was                         
  intended to encourage construction.  He expressed his                        
  opinion that, for the same reasons that the Supreme Court                    
  would find the bill unconstitutional, the committee should                   
  conclude that the bill would not encourage construction.                     
  House Bill 160 would be a help to design professionals only,                 
  he said.  He asked if it was sound public policy to deprive                  
  innocent victims of their day in court, in order to allow                    
  architects and engineers to sleep better at night.  He                       
  called the bill "special interest legislation."                              
                                                                               
  MR. WINNER mentioned that one of the rationales for HB 160                   
  was to avoid "frivolous" lawsuits filed more than ten years                  
  after a building was completed.  He commented that Justice                   
  Moore of the Supreme Court had recently appointed a                          
  committee of judges and lawyers charged with overhauling the                 
  Alaska civil court system, based on an Arizona model.  He                    
  said that such changes would force frivolous cases out of                    
  the court system at a very early stage of the process.  He                   
  noted that if the purpose of HB 160 was to eliminate                         
  frivolous lawsuits against design professionals, the House                   
  Judiciary Committee should closely examine the work of                       
  Justice Moore's committee.                                                   
                                                                               
  Number 571                                                                   
                                                                               
  REPRESENTATIVE CLIFF DAVIDSON asked how many other states                    
  could have statutes of repose on the books, while Alaska's                   
  statute of repose was struck down as unconstitutional.                       
                                                                               
  Number 582                                                                   
                                                                               
  MR. WINNER had not examined statutes of repose in other                      
  states.  However, he guessed that the other states' statutes                 
  of repose were not terribly different from that which was                    
  being proposed in HB 160.  The difference, he said, lay in                   
  the make-up of the Supreme Court in Alaska.  He said that                    
  Alaska's Supreme Court was very protective of the rights of                  
  plaintiffs.                                                                  
                                                                               
  Number 595                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON asked Mr. Winner to comment on                       
  claims that HB 160 would provide equal access to the courts,                 
  and would limit insurance rates.                                             
                                                                               
  MR. WINNER had a hard time understanding how HB 160 would                    
  aid in providing access to the courts, as in his opinion,                    
  the point of the bill was to bar access to the courts.                       
                                                                               
  REPRESENTATIVE DAVIDSON noted that proponents claimed that                   
  HB 160 would provide equal access to the courts.                             
                                                                               
  MR. WINNER believed that proponents had made that claim as a                 
  way of expressing their hope that the Supreme Court would                    
  not find the law unconstitutional with regard to equal                       
  protection provisions.  He believed that the court would                     
  find HB 160 unconstitutional.  He mentioned that the                         
  Legislative Affairs Agency's Division of Legal Services                      
  agreed with his assessment.                                                  
                                                                               
  Number 618                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON asked Mr. Winner to address the                      
  claim of limited insurance rates.                                            
                                                                               
  Number 620                                                                   
                                                                               
  MR. WINNER said that he had read a letter in the bill                        
  packets from an insurance agency which stated, in essence,                   
  that insurance rates would likely not drop immediately if                    
  HB 160 was enacted.  Yet, he said, paraphrasing the letter,                  
  as time progressed, design professionals' insurance rates                    
  might increase if the bill did not pass, due to exposure to                  
  lawsuits.  In response, he commented that Alaska was too                     
  small of a market for insurance companies to have special                    
  rates for Alaska.                                                            
                                                                               
  MR. WINNER asserted that Alaska's experience would not have                  
  an impact on insurance rates.  What would impact rates, in                   
  his opinion, was the lost experiences of an entire region of                 
  states, including Alaska.  Also, he said, insurance rates                    
  were determined largely as a result of the investment                        
  performance of insurance companies.                                          
                                                                               
  MR. WINNER discussed the question of whether insurance rates                 
  would go up if HB 160 was not enacted.  He stated that not                   
  many suits would be filed by people injured as a result of a                 
  building collapsing more than ten years after the building                   
  was completed.  He expressed doubts about insurance rates                    
  increasing in the event that HB 160 was not enacted.                         
                                                                               
  Number 676                                                                   
                                                                               
  REPRESENTATIVE JIM NORDLUND expressed his concerns regarding                 
  HB 160.  He said that if the intent of the bill was to                       
  discourage frivolous lawsuits, then he supported it.                         
  However, he noted his concerns for victims who were injured                  
  or killed due to poor building design.  He called the                        
  members' attention to page 3 of the bill, which set out                      
  exemptions to the bill's provisions.  On page 3, line 17, he                 
  said, the bill mentioned situations in which damage was                      
  caused intentionally, fraudulently, etc.  He asked Mr.                       
  Winner to discuss the difference between "gross negligence"                  
  and "simple negligence."                                                     
                                                                               
  REPRESENTATIVE NORDLUND expressed his desire that victims be                 
  allowed to file suit if a design professional acted                          
  negligently.                                                                 
                                                                               
  Number 701                                                                   
                                                                               
  MR. WINNER said that in his experience as a plaintiff's                      
  attorney, gross negligence was a very high standard to                       
  prove.  He noted the current version of HB 160 said that if                  
  a design professional was grossly negligent, then he or she                  
  could be sued after the ten year period.  He commented that                  
  there was a big difference between gross negligence and                      
  simple negligence.                                                           
                                                                               
  Number 719                                                                   
                                                                               
  REPRESENTATIVE NORDLUND asked if the definitions varied on a                 
  case-by-case basis, as determined by individual judges.                      
                                                                               
  Number 722                                                                   
                                                                               
  MR. WINNER responded that the definition was a pretty firm                   
  standard, although it was generally up to a jury to decide                   
  whether a person had been grossly negligent.                                 
                                                                               
  Number 729                                                                   
                                                                               
  REPRESENTATIVE PHILLIPS asked Mr. Winner if Alaska attorneys                 
  had a statute of repose.                                                     
                                                                               
  Number 732                                                                   
                                                                               
  MR. WINNER replied that no statute of repose applied to                      
  suits against lawyers.                                                       
                                                                               
  Number 734                                                                   
                                                                               
  CHAIRMAN PORTER asked Mr. Winner if, during the                              
  approximately 20 years that the old statute of repose was in                 
  place, there were any instances of buildings collapsing                      
  after the period of repose had ended.                                        
                                                                               
  Number 743                                                                   
                                                                               
  MR. WINNER was not aware of any such cases.  He reiterated                   
  his belief that it would be an unusual case which would fall                 
  within the purview of HB 160.  He thought it was true that                   
  most design defect cases would be brought within ten years                   
  of a building's completion.                                                  
                                                                               
  Number 749                                                                   
                                                                               
  REPRESENTATIVE JEANNETTE JAMES understood and agreed with                    
  much of Mr. Winner's testimony.  She said that the public                    
  felt frustrated with regard to tort reform and the need for                  
  equal protection.  She asked if there could be an incidence                  
  of design professionals being sued for a building collapse,                  
  although they were not at fault.  If in that case the                        
  plaintiff's attorney was very astute and the defendant's                     
  attorney was not, she asked if it was possible that the                      
  design professional would lose the case, although he or she                  
  was not at fault.                                                            
                                                                               
  Number 767                                                                   
                                                                               
  MR. WINNER said that the situation which Representative                      
  James had described could occur, although it would be                        
  uncommon.  However, he noted that a judge and jury would                     
  also be involved in that case.  He expressed his opinion                     
  that juries were, as a rule, very skeptical of plaintiffs'                   
  claims.                                                                      
                                                                               
  REPRESENTATIVE JAMES stated that Mr. Winner had made her                     
  point by mentioning the involvement of the judge and jury,                   
  and by mentioning the attitude of juries.                                    
                                                                               
  Number 786                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON asked Mr. Winner why he felt HB 160                  
  needed a fiscal note, in light of his statement that very                    
  few cases would be affected by HB 160.                                       
                                                                               
  Number 793                                                                   
                                                                               
  MR. WINNER replied that, in looking through the materials                    
  submitted to the committee on HB 160, he had seen no fiscal                  
  notes.  He stated that both the Department of Law (DOL) and                  
  the court system had indicated that the bill would have no                   
  fiscal impact.  He expressed his opinion that the bill would                 
  result in increased costs to the state.                                      
                                                                               
  MR. WINNER commented that the agencies had made the point                    
  that they contracted with design professionals, when a                       
  building was being constructed for the state.  Those                         
  contracts, the agencies held, entitled the state to sue                      
  those design professionals.  Those contractual rights, they                  
  said, overrode what was in statute.  In response, he said                    
  that those arguments did not apply to a situation in which a                 
  school collapsed, in its eleventh year, due to a design                      
  flaw, killing school children.  In that situation, he asked,                 
  who would pay?  If the design professionals could not be                     
  sued, he said, the taxpayers would have to pay.                              
                                                                               
  TAPE 93-42, SIDE B                                                           
  Number 000                                                                   
                                                                               
  RICHARD RITTER, representing the ALASKA CHAPTER OF THE                       
  AMERICAN INSTITUTE OF ARCHITECTS and the ALASKA PROFESSIONAL                 
  DESIGN COUNCIL, testified that he was one of the prime                       
  sponsors of the joint and several liability initiative in                    
  1987.  He said that that law ensured a person was only                       
  responsible for his or her share of the fault.  He expressed                 
  surprise at the court's subsequent interpretation of the                     
  law's language.                                                              
                                                                               
  MR. RITTER noted that 32 states had found statutes of repose                 
  for design professionals to be constitutional.  He added                     
  that 96.8% of claims against design professionals were                       
  brought within ten years of a building's completion,                         
  according to studies.  Most claims filed after ten years                     
  were easily defended by architects, he said.  He said that                   
  HB 160 was an attempt to balance the rights of plaintiffs to                 
  bring claims against the rights of others to keep their                      
  business affairs in order.                                                   
                                                                               
  MR. RITTER commented that if a roof collapsed ten years                      
  after a building was completed, it could be for any number                   
  of reasons -- maintenance, excessive loads, or a structural                  
  engineering error.  He said that if he had a structural                      
  engineer working for him, and that engineer made an error                    
  which resulted in the collapse of a roof, he would call that                 
  gross negligence.                                                            
                                                                               
  Number 075                                                                   
                                                                               
  MR. RITTER expressed concern that design professionals had                   
  to pay for defense costs, even if they were innocent, out of                 
  their own pockets.  Additionally, he said, design                            
  professionals' insurance only kicked in after huge                           
  deductibles were paid.  He mentioned that bills similar to                   
  HB 160 had been introduced many times in the past, and had                   
  never had fiscal notes attached.                                             
                                                                               
  Number 085                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON asked Mr. Ritter how he, as an                       
  architect, protected himself against poor or inadequate                      
  building maintenance.                                                        
                                                                               
  Number 095                                                                   
                                                                               
  MR. RITTER replied that to a certain extent, architects                      
  could design buildings in such a manner as to minimize                       
  maintenance.  However, he said that such design features                     
  hinged on budget considerations.                                             
                                                                               
  Number 114                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON asked Mr. Ritter to clarify his                      
  remarks.                                                                     
                                                                               
  Number 123                                                                   
                                                                               
  MR. RITTER gave an example in which an architect recommended                 
  that a client use a roofing system with an expected 20-year                  
  life, and the client said that he or she could not afford                    
  such a roof.  In that case, he said, the architect could                     
  recommend a cheaper roof, with an expected life of ten                       
  years, which would still meet the building code.                             
                                                                               
  Number 131                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON asked Mr. Ritter if, as a design                     
  professional who was found innocent of any fault, his                        
  attorneys' fees would be paid by the plaintiff.                              
                                                                               
  Number 138                                                                   
                                                                               
  MR. RITTER did not know the answer to Representative                         
  Davidson's question, as no claims had ever been brought                      
  against his practice.                                                        
                                                                               
  Number 143                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON asked Mr. Ritter why, if he had                      
  never had a claim brought against him, he felt that HB 160                   
  was needed.                                                                  
                                                                               
  Number 145                                                                   
                                                                               
  MR. RITTER stated that when he retired, he did not want to                   
  be followed around for the rest of his life by claims that                   
  buildings he had designed 30 years earlier had had design                    
  flaws.                                                                       
                                                                               
  Number 149                                                                   
                                                                               
  REPRESENTATIVE NORDLUND offered an example in which a                        
  building had not been constructed according to the building                  
  code, and its roof collapsed eleven years after it was                       
  completed.  "Would that be considered an act of gross                        
  negligence on the part of the contractor?" he asked.                         
                                                                               
  Number 159                                                                   
                                                                               
  MR. RITTER responded that he was not qualified to provide                    
  Representative Nordlund with a legal definition of "gross                    
  negligence."  He said that in his practice, he subcontracted                 
  with a structural engineer to design roofs.  If a structural                 
  engineer erred in designing a roof, he said, it would, in                    
  his opinion, be classified as gross negligence.                              
                                                                               
  Number 184                                                                   
                                                                               
  REPRESENTATIVE PHILLIPS OFFERED AMENDMENT NO. 1, reducing                    
  the term of the statute of repose from ten years to eight                    
  years.  She said that the sponsor concurred with her                         
  amendment.  She mentioned that 96.8% of claims were brought                  
  within ten years of a building's completion and 95.5% of                     
  claims were brought within eight years of a building's                       
  completion.                                                                  
                                                                               
  Number 207                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON OBJECTED.                                            
                                                                               
  Number 209                                                                   
                                                                               
  REPRESENTATIVE NORDLUND also OBJECTED.  He noted that design                 
  professionals were involved in a unique occupation.  He said                 
  that the legislature was trying to decide at what point                      
  designers should be relieved of the liability of their                       
  designs.  He expressed his opinion that ten years was                        
  adequate, and said that reducing the term to eight years                     
  increased the exposure for victims and decreased their                       
  ability to collect damages.  He urged the committee to vote                  
  against the amendment.                                                       
                                                                               
  Number 236                                                                   
                                                                               
  REPRESENTATIVE PHILLIPS commented that her amendment                         
  represented only a minuscule change in the number of claims                  
  which would be affected by HB 160.  She said that her                        
  amendment would have a substantial impact on the economy and                 
  on the construction industry.                                                
                                                                               
  Number 245                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON said that, for him, the issue came                   
  down to choosing between protecting the public and                           
  pretending that it did not matter.  He stated that while the                 
  state wanted to encourage construction and ensure that                       
  Alaska was not a bad place in which to do business, he did                   
  not support the amendment.                                                   
                                                                               
  Number 262                                                                   
                                                                               
  REPRESENTATIVE JAMES commented that with a ten-year statute                  
  of repose, the committee could "sell" the bill, whereas with                 
  an eight-year term, the bill would not "sell."                               
                                                                               
  Number 270                                                                   
                                                                               
  REPRESENTATIVE PHILLIPS WITHDREW the AMENDMENT.                              
                                                                               
  Number 272                                                                   
                                                                               
  REPRESENTATIVE NORDLUND OFFERED AMENDMENT NO. 2.  He                         
  mentioned an argument which had been set out in some written                 
  materials included in the bill packets, which said that, if                  
  HB 160 was enacted, a victim could still sue a building                      
  owner in the event that the owner did not adequately                         
  maintain a building, resulting in its collapse.  He added                    
  that in that instance, designers would be absolved of                        
  responsibility and the owner held accountable for the                        
  damage.  He stated that his amendment would allow for an                     
  owner to "reasonably know" that there was a problem with a                   
  building and either report the problem to design                             
  professionals or fix the problem.                                            
                                                                               
  REPRESENTATIVE NORDLUND added that the amendment provided                    
  that a defect would have to be discovered, or could                          
  reasonably be discovered, within ten years after a                           
  building's completion.                                                       
                                                                               
  Number 306                                                                   
                                                                               
  CHAIRMAN PORTER understood the intent of the amendment to be                 
  to relieve owners of responsibility for what otherwise would                 
  have been determined to be design defects, but not improper                  
  maintenance.                                                                 
                                                                               
  Number 322                                                                   
                                                                               
  REPRESENTATIVE NORDLUND said that it was the intent of his                   
  amendment that if an owner could see that there was a crack                  
  in the beam of a building and did not report that, then the                  
  owner would be responsible and the design professionals                      
  would be absolved.  He MOVED the AMENDMENT.                                  
                                                                               
  Number 327                                                                   
                                                                               
  REPRESENTATIVE PHILLIPS OBJECTED.                                            
                                                                               
  Number 331                                                                   
                                                                               
  MR. RITTER commented that Representative Nordlund's                          
  amendment seemed to remove the statute of repose.                            
                                                                               
  Number 349                                                                   
                                                                               
  REPRESENTATIVE PHILLIPS shared Mr. Ritter's opinion.  For                    
  that reason, she said, she opposed the amendment.                            
                                                                               
  Number 354                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON asked Representative Phillips how                    
  the amendment would negate the statute of repose.                            
                                                                               
  Number 358                                                                   
                                                                               
  CHAIRMAN PORTER asked Mr. Winner to address the effect of                    
  the amendment.                                                               
                                                                               
  Number 360                                                                   
                                                                               
  MR. WINNER said that if an owner or a lessee knew of a                       
  problem, or should have known about a problem after the ten-                 
  year period, then the amendment would protect the design                     
  professionals from lawsuits.  If, however, the owner, or the                 
  lessee, or the victim, knew about or should have known about                 
  the problem with the building, then the design professionals                 
  would be covered by the statute of repose and could not be                   
  sued after ten years.  He added that if a defect were of a                   
  type that no one could discern it during the first ten                       
  years, then a suit could be brought against the designers.                   
                                                                               
  CHAIRMAN PORTER recommended that committee members vote                      
  against the amendment, as it would negate the effect of                      
  HB 160.                                                                      
                                                                               
  Number 402                                                                   
                                                                               
  REPRESENTATIVE NORDLUND commented that the amendment would                   
  not negate the effect of HB 160 in every situation.                          
                                                                               
  CHAIRMAN PORTER stated that the amendment would be the issue                 
  that would cause the litigation to occur, as opposed to not                  
  occurring.  He called for a roll call vote.  Representatives                 
  Nordlund and Davidson voted "YEA."  Representatives                          
  Phillips, Kott, Green, James, and Porter voted "NAY."  And                   
  so, AMENDMENT NO. 2 FAILED.                                                  
                                                                               
  Number 419                                                                   
                                                                               
  REPRESENTATIVE NORDLUND MOVED AMENDMENT NO. 3.                               
                                                                               
  Number 422                                                                   
                                                                               
  REPRESENTATIVE PHILLIPS OBJECTED.                                            
                                                                               
  Number 424                                                                   
                                                                               
  REPRESENTATIVE NORDLUND indicated that the amendment                         
  provided that the ten-year statute of repose would not apply                 
  to design professionals in cases of negligence.                              
                                                                               
  Number 434                                                                   
                                                                               
  CHAIRMAN PORTER spoke against the amendment.  He mentioned                   
  that the difference between simple negligence and gross                      
  negligence varied on a case-by-case basis.  In general                       
  terms, he said, the amendment grossly reduced the level of                   
  negligence involved.  In some cases, he said, simple                         
  negligence was found as the result of a simple, honest,                      
  mistake.                                                                     
                                                                               
  Number 449                                                                   
                                                                               
  REPRESENTATIVE NORDLUND expressed concern for victims and                    
  their ability to collect damages.  Victims should be allowed                 
  to bring suit for mistakes made by design professionals,                     
  whether as a result of gross or simple negligence.                           
                                                                               
  Number 459                                                                   
                                                                               
  REPRESENTATIVE PETE KOTT called the members' attention to                    
  page 2, line 20 of HB 160, which also addressed gross                        
  negligence.  He asked if that language would also need to be                 
  amended, in order to comport with Representative Nordlund's                  
  amendment.                                                                   
                                                                               
  Number 468                                                                   
                                                                               
  REPRESENTATIVE NORDLUND replied that the language to which                   
  Representative Kott had referred was part of the "findings"                  
  section, and would not become a permanent part of the law.                   
  A roll call vote was taken on amendment no. 3.                               
  Representatives Davidson and Nordlund voted "YEA."                           
  Representatives Kott, Phillips, James, and Porter voted                      
  "NAY."  And so, AMENDMENT NO. 3 FAILED.                                      
                                                                               
  REPRESENTATIVE KOTT made a MOTION to MOVE HB 160 out of                      
  committee with individual recommendations and a zero fiscal                  
  note.                                                                        
                                                                               
  Number 484                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON OBJECTED.  He said that it appeared                  
  that the legislature was giving designers a license to                       
  design for ten years and no more.  "Who better than                          
  architects and engineers knew where a building's weaknesses                  
  were?" he asked.  He spoke against HB 160.  He asked why the                 
  legislature wanted to create more victims and encourage                      
  professionals to do less than the very finest work.  He                      
  cited Mr. Ritter's testimony about never having faced a                      
  claim in fifteen years.  He said that he would vote against                  
  moving the bill out of committee.                                            
                                                                               
  Number 518                                                                   
                                                                               
  CHAIRMAN PORTER indicated that he intended to support                        
  HB 160.  In his opinion, the bill leveled the playing field                  
  for design professionals.  If, he said, insurance rates were                 
  regionalized, it was not fair that Alaska's design                           
  professionals were not protected, while their counterparts                   
  in other states were.  Regarding the question of who would                   
  pay if HB 160 were enacted, he submitted that the bill did                   
  not cover owners for very obvious reasons, as owners were                    
  required to maintain insurance on their property.                            
                                                                               
  REPRESENTATIVE DAVIDSON OBJECTED to the motion.                              
                                                                               
  CHAIRMAN PORTER called for a roll call vote.                                 
  Representatives Kott, Phillips, James, and Porter voted                      
  "YEA."  Representatives Nordlund and Davidson voted "NAY."                   
  And so, HB 160 was PASSED out of committee.                                  
                                                                               
  CHAIRMAN PORTER announced that the committee would next                      
  address SB 54.                                                               
                                                                               
  SB 54:  OFFENSES BY JUVENILE OFFENDERS                                       
                                                                               
  Number 559                                                                   
                                                                               
  SENATOR RICK HALFORD, PRIME SPONSOR of SB 54, said that his                  
  bill addressed a series of juvenile justice issues.  First,                  
  he said, the bill addressed which juveniles would be tried                   
  as adults, how and why.  He added that SB 54 also addressed                  
  restitution, public information, information with regard to                  
  civil suits, and place of incarceration.                                     
                                                                               
  Number 570                                                                   
                                                                               
  REPRESENTATIVES KOTT and JAMES left at 3:12 p.m.                             
                                                                               
  SENATOR HALFORD stated that SB 54 required that juveniles                    
  over the age of 16, who committed major felonies, be tried                   
  as adults.  The bill also set out conditions under which                     
  juveniles as young as 14 could be tried as adults, he added.                 
  The sponsor said that SB 54 provided that confidentiality                    
  protection did not apply for juveniles over the age of 16,                   
  after they were adjudicated as delinquent.  His goal was to                  
  consider the victims of juvenile crimes, as well as the                      
  perpetrators.  He commented that in each area of the bill,                   
  the committee would probably want to address substantive as                  
  well as technical questions.                                                 
                                                                               
  SENATOR HALFORD commented that the Senate's position on                      
  juvenile justice reform was not the only acceptable                          
  position, and expressed his willingness to work with the                     
  House Judiciary Committee on SB 54.  He stated that the                      
  state should strengthen juvenile justice statutes with                       
  regard to trials, restitution, information, and deterrence.                  
                                                                               
  Number 595                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON asked the sponsor what was lacking                   
  in the version of SB 54 which the Senate had passed.                         
                                                                               
  Number 599                                                                   
                                                                               
  SENATOR HALFORD said that there were a number of components                  
  of the juvenile justice system.  Senate Bill 54 addressed                    
  the deterrence issue, he said.  He expressed an opinion that                 
  the legislature should also address laws regarding runaways,                 
  a boot camp bill, and other components of the juvenile                       
  justice system.                                                              
                                                                               
  Number 612                                                                   
                                                                               
  REPRESENTATIVE KOTT returned to the meeting at 3:15 p.m.                     
                                                                               
  Number 619                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON asked the sponsor what provision of                  
  SB 54 he thought would be the most effective deterrent to                    
  juvenile crime.                                                              
                                                                               
  Number 622                                                                   
                                                                               
  SENATOR HALFORD replied that the fear of sure and sufficient                 
  punishment would be increased by the passage of SB 54.  He                   
  believed that some juveniles now felt they could get away                    
  with murder.                                                                 
                                                                               
  Number 630                                                                   
                                                                               
  REPRESENTATIVE NORDLUND stated that it appeared that one                     
  rationale behind SB 54 was that juveniles could make                         
  decisions as adults.  Yet, he said, laws still limited the                   
  age of majority with regard to voting and drinking.  He also                 
  cited Senator Halford's opinion that the legislature should                  
  enact laws regarding runaways.  He saw the sponsor espousing                 
  conflicting philosophies.  He asked Senator Halford to                       
  comment.                                                                     
                                                                               
  Number 650                                                                   
                                                                               
  SENATOR HALFORD responded by saying that with regard to                      
  minor crimes which did not threaten human life, he                           
  recommended cutting juvenile offenders some slack and                        
  working toward rehabilitating those juveniles.  However, he                  
  said that in the situation of a 15-year-old who contemplated                 
  and carried out a murder, that juvenile had made a lifetime                  
  decision for the victim and a lifetime decision for him- or                  
  herself.                                                                     
                                                                               
  Number 665                                                                   
                                                                               
  REPRESENTATIVE NORDLUND reminded the committee members that                  
  current law contained a procedure for waiving juvenile                       
  offenders into adult court.  He expressed his opinion that                   
  the current procedure worked.  He noted that SB 54 did not                   
  seem to provide for mitigating circumstances, such as a                      
  child murdering his or her parents after enduring years of                   
  sexual abuse.                                                                
                                                                               
  Number 680                                                                   
                                                                               
  SENATOR HALFORD, addressing Representative Nordlund's                        
  contention that current law was adequate, mentioned a recent                 
  Court of Appeals ruling which held that the state could not                  
  force a juvenile offender to undergo a psychiatric                           
  evaluation.  He said that based on that ruling, it would                     
  become more difficult for the state to deal with certain                     
  juvenile justice issues.                                                     
                                                                               
  Number 686                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON commented that some children reached                 
  the age of 16 after facing tremendous disadvantages their                    
  entire lives.  He asked Sen. Halford to address how SB 54                    
  would allow for fair treatment of such disadvantaged                         
  juveniles.                                                                   
                                                                               
  Number 697                                                                   
                                                                               
  SENATOR HALFORD stated that the entire criminal justice                      
  process allowed for a great deal of leeway with regard to                    
  the kind of charge that was filed, and whether or not the                    
  state pursued a waiver of a juvenile into adult court.  He                   
  expressed his opinion that the criminal justice system had                   
  many tools with which to address mitigating circumstances.                   
                                                                               
  Number 704                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON asked Senator Halford if he believed                 
  that hard-core juvenile offenders would be guided by the                     
  fear of sure and sufficient punishment.                                      
                                                                               
  Number 713                                                                   
                                                                               
  SENATOR HALFORD replied that SB 54 was a step in the right                   
  direction.                                                                   
                                                                               
  HB 100:  PROSECUTION OF JUVENILE FELONS                                      
                                                                               
  TAPE 93-43, SIDE A                                                           
  Number 000                                                                   
                                                                               
  DEAN GUANELI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,                 
  DEPARTMENT OF LAW (DOL), said that this was the second time                  
  he had testified before the committee on the issue of                        
  juvenile waivers.  The first time, he said, he had addressed                 
  Representative Con Bunde's juvenile waiver bill, HB 100, and                 
  had urged that the committee members look very closely at                    
  specific offenses for which an automatic waiver into adult                   
  court was being proposed.  He said that when he had last                     
  testified on juvenile waivers, the governor's juvenile                       
  waiver bill had not yet been introduced.                                     
                                                                               
  MR. GUANELI said that the governor's juvenile waiver bill                    
  had since been introduced.  That bill, he noted, took a                      
  narrower approach to juvenile waivers than did SB 54 and HB
  100, at the urging of the Department of Health and Social                    
  Services (DHSS).                                                             
                                                                               
  MR. GUANELI commented that the juvenile justice system was                   
  based on a presumption that many juvenile offenders were                     
  treatable, very quickly, under the juvenile system.  He                      
  expressed his opinion that that presumption was not valid in                 
  all cases, particularly with regard to murder offenses.  The                 
  juvenile justice system could, in his opinion, better deal                   
  with most offenses other than murder.  He added that the                     
  DHSS shared that opinion.                                                    
                                                                               
  MR. GUANELI mentioned that DOL and DHSS officials were                       
  concerned that some 16- and 17-year-olds would be receiving                  
  presumptive sentences in adult court.  He noted that judges                  
  already experienced a great deal of difficulty when handing                  
  down presumptive sentences for 18- and 19-year-olds.  He                     
  again urged the committee to look carefully at which crimes                  
  they wished to include in a juvenile waiver bill.                            
                                                                               
  Number 126                                                                   
                                                                               
  REPRESENTATIVE JAMES returned to the committee at 3:26 p.m.                  
                                                                               
  MR. GUANELI mentioned that if a 17-year-old sold drugs to a                  
  13-year-old, and drug selling offenses were included in a                    
  juvenile waiver law, that 17-year-old would be subject to a                  
  mandatory minimum 5-year jail sentence.  He mentioned other                  
  crimes which carried mandatory, stiff jail sentences.  He                    
  questioned whether the committee felt that these mandatory                   
  sentences were appropriate for juvenile offenders.                           
                                                                               
  MR. GUANELI appreciated Senator Halford's comment regarding                  
  prosecutors' discretion to charge juveniles with lesser                      
  offenses in order to get those juveniles out of the adult                    
  justice system.  However, he noted that if the law dictated                  
  that a certain type of conduct, committed under certain                      
  circumstances, ought to be punished in a certain way, it was                 
  his belief that it would be undesirable for prosecutors to                   
  be intentionally undercutting the law.                                       
                                                                               
  MR. GUANELI stated that the committee should look into the                   
  effect on the Department of Corrections (DOC) of a broadly-                  
  written juvenile waiver bill.  If the bill only applied to                   
  murder cases, he said, the DOC would only receive a handful                  
  of new prisoners.  But, he said, a broader juvenile waiver                   
  bill would result in more new prisoners for the DOC to                       
  manage.  He questioned whether the DOC would be able to                      
  handle several dozen additional offenders every year.                        
                                                                               
  MR. GUANELI understood that the DOC currently experienced                    
  difficulty in segregating various segments of the prison                     
  population, including pre-trial offenders, female prisoners,                 
  and mentally-ill prisoners.  He questioned whether the DOC                   
  was the best agency for dealing with a large number of very                  
  young offenders.  Mr. Guaneli reiterated his recommendation                  
  that the committee study the issue of juvenile waivers very                  
  carefully.                                                                   
                                                                               
  MR. GUANELI had some additional comments to make regarding                   
  records.  However, he said that before getting into the                      
  details of SB 54, he would like for the committee to hear                    
  from the Attorney General.                                                   
                                                                               
  Number 197                                                                   
                                                                               
  ATTORNEY GENERAL CHARLIE COLE expressed his opinion that                     
  SB 54 should have a narrow focus, limited to juveniles who                   
  committed first- or second-degree murder.  He commented that                 
  the present system worked reasonably well when applied to                    
  other offenses currently covered by SB 54.  On the other                     
  hand, he stated that times had changed, making 16- and 17-                   
  year-olds a different societal group than they had been when                 
  he was a young person.  As such, he said that they knew what                 
  they were doing and ought to be treated as adults.                           
                                                                               
  MR. COLE commented that if it was appropriate for a youth to                 
  be charged with assault with intent to kill, then                            
  prosecutors should charge him or her with that offense                       
  instead of a lesser offense.  He added that prosecutors and                  
  law enforcement officials should be given the freedom to                     
  exercise their own sound judgment with regard to what                        
  offense a youth should be charged with.                                      
                                                                               
  Number 271                                                                   
                                                                               
  REPRESENTATIVE DAVIDSON asked Mr. Cole if he was asking the                  
  committee not to disregard the recommendations of                            
  prosecutors.  He asked Mr. Cole if he was saying that SB 54                  
  did not allow prosecutors as much leeway as they currently                   
  enjoyed.                                                                     
                                                                               
  Number 284                                                                   
                                                                               
  MR. COLE replied that if he had understood the question,                     
  then the answer was "yes."  He commented that prosecutors                    
  and law enforcement officers should be able to charge                        
  offenders with the appropriate offense within their                          
  discretion, rather than some lesser offense, simply in order                 
  to get around charging a young offender as an adult.                         
                                                                               
  Number 302                                                                   
                                                                               
  CHAIRMAN PORTER was struck by the Attorney General's                         
  comparison between murder and assault with intent to kill.                   
                                                                               
  Number 322                                                                   
                                                                               
  MR. COLE admitted his illustration was a poor one.  He                       
  stated that he was interested in drawing the line at the                     
  point at which the specific intent to take human life was                    
  formed.                                                                      
                                                                               
  Number 341                                                                   
                                                                               
  REPRESENTATIVE PHILLIPS commented that, in her opinion, a                    
  youth who sold drugs could be said to possess the intent to                  
  take human life.  She asked the Attorney General how he                      
  could draw a firm line.                                                      
                                                                               
  REPRESENTATIVE DAVIDSON left the committee at 3:36 p.m.                      
                                                                               
  Number 352                                                                   
                                                                               
  MR. COLE did not disagree with Representative Phillips.  He                  
  stated that it was difficult to choose a cut-off point.  He                  
  said that the governor had to make a tactical decision                       
  regarding the cut-off point, because of a desire to get a                    
  juvenile waiver bill passed this year.  In that light, he                    
  said, offenses which the public pretty unanimously supported                 
  for waiver to the adult justice system were chosen to be                     
  included in the bill.  He added that the waiver process                      
  could always be tinkered with later, in order to include                     
  more offenses.                                                               
                                                                               
  CHAIRMAN PORTER commented that the committee was losing                      
  members, due to the late hour.  He stated that the committee                 
  would need to draft a committee substitute for SB 54,                        
  because of technical problems in the existing bill.  He                      
  announced that the bill would be brought back before the                     
  committee at a time uncertain.                                               
                                                                               
  Number 408                                                                   
                                                                               
  REPRESENTATIVE PHILLIPS asked that the committee members be                  
  provided with an outline of the differences between the                      
  governor's juvenile waiver bill and Senator Halford's.                       
                                                                               
  REPRESENTATIVE PHILLIPS left the committee at 3:40 p.m.                      
                                                                               
  Number 425                                                                   
                                                                               
  LIZ DODD, representing the ALASKA CHAPTER OF THE AMERICAN                    
  CIVIL LIBERTIES UNION, commented that the committee was                      
  discussing the trial venue of juvenile offenders.  She                       
  stated that the Constitution compelled the state to try                      
  offenders in a venue which would ensure their fair                           
  treatment.  She said that while it was easy to agree with                    
  the Attorney General when he said that a person who pulled                   
  the trigger knew what he or she was doing, the assumption                    
  was made that the person on trial was guilty of the offense.                 
                                                                               
  MS. DODD noted that juvenile waiver bills would put juvenile                 
  offenders in the position of trying to convince adult court                  
  officials that they were not guilty of an offense.  She                      
  asked the committee to bear in mind that juvenile waiver                     
  bills affected not only where a juvenile would go after                      
  being convicted, but also in what arena he or she would be                   
  tried.  She expressed her opinion that one function of the                   
  juvenile justice system was to ensure that young offenders                   
  were in an arena where adults were looking out for their                     
  rights.                                                                      
                                                                               
  MS. DODD indicated that she understood the logic behind                      
  SB 54.  She stated that it was probably true that kids today                 
  were somehow different than they used to be.  She said that                  
  SB 54 reflected the belief that if society scared kids more,                 
  they would stop committing crimes.  However, she said that                   
  juvenile crime was a complex problem, partially a result of                  
  all of the violence inherent in society.  She indicated her                  
  lack of support for SB 54.                                                   
                                                                               
  Number 484                                                                   
                                                                               
  CHAIRMAN PORTER asked Ms. Dodd, "If a juvenile were waived                   
  to adult court, did the standards for conviction not                         
  increase?"                                                                   
                                                                               
  Number 494                                                                   
                                                                               
  MS. DODD replied that as she was not an attorney, she could                  
  not speak to the Chairman's question.  She mentioned Mr.                     
  Guaneli's comment that judges currently struggled with                       
  handing out presumptive sentences to 18- and 19-year-old                     
  offenders.  She stated that SB 54 would make judges struggle                 
  even harder when handing out presumptive sentences to 16-                    
  and 17-year-olds.  She cited some differences between the                    
  juvenile and the adult court systems.                                        
                                                                               
  ADJOURNMENT                                                                  
                                                                               
  CHAIRMAN PORTER adjourned the meeting at 3:48 p.m.                           

Document Name Date/Time Subjects