Legislature(1995 - 1996)

02/06/1995 01:08 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
               HOUSE JUDICIARY STANDING COMMITTEE                              
                        February 6, 1995                                       
                           1:08 p.m.                                           
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Brian Porter, Chairman                                         
 Representative Joe Green, Vice Chairman                                       
 Representative Con Bunde                                                      
 Representative Bettye Davis                                                   
 Representative Al Vezey                                                       
 Representative Cynthia Toohey                                                 
 Representative David Finkelstein                                              
                                                                               
 COMMITTEE CALENDAR                                                            
                                                                               
 Presentation:  "State of AK - An Assessment of Impaired Driving               
    Programs"                                                                  
                                                                               
 HB 19:"An Act relating to the definition of 'fault' as that                  
 term is used for the purposes of determining the                              
 liabilities of parties in civil actions, setting                              
 limitations on civil liability, and authorizing the                           
 award, in conformance with applicable court rule, of                          
 attorney fees in civil actions."                                              
                                                                               
 PASSED OUT OF COMMITTEE                                                     
                                                                               
 * HB 18:"An Act amending the statute of limitations applicable to            
 civil actions brought against peace officers and                              
 coroners."                                                                  
                                                                               
 PASSED OUT OF COMMITTEE                                                     
 HB 25:"An Act revising Rule 16, Alaska Rules of Criminal                     
 Procedure, relating to discovery and inspection in                            
 criminal proceedings, to adopt the comparable federal                         
 rule."                                                                        
                                                                               
 SCHEDULED BUT NOT HEARD                                                     
 (* First public hearing)                                                      
                                                                               
 WITNESS REGISTER                                                              
                                                                               
 RON OTTE, COMMISSIONER                                                        
 DEPARTMENT OF PUBLIC SAFETY                                                   
 P.O. BOX 111200                                                               
 JUNEAU, AK 99811-1200                                                         
 Telephone:  (907)  465-4322                                                   
 POSITION STATEMENT:  Provided information on Impaired Driving                 
      Programs                                                                 
                                                                               
 LORN CAMPBELL, ADMINISTRATOR                                                  
 DEPARTMENT OF PUBLIC SAFETY                                                   
 ALASKA HIGHWAY SAFETY PLANNING AGENCY                                         
 P.O. BOX 111200                                                               
 JUNEAU, AK 99811-1200                                                         
 Telephone:  (907)  465-4371                                                   
 POSITION STATEMENT:  Presented Impaired Driving Programs                      
                                                                               
 CHARLES FROBENIUS, PRIVATE INDIVIDUAL                                         
 Matanuska-Susitna Borough Legislative Information Office                      
 Phone number and address not obtained                                         
 POSITION STATEMENT:  Testified against HB 18                                  
                                                                               
 WILDA WHITAKER, AIDE TO REPRESENTATIVE GENE THERRIAULT                        
 Alaska State Legislature                                                      
 State Capitol, Room 421                                                       
 Juneau, AK 99801-1182                                                         
 Telephone:  (907)  465-4797                                                   
 POSITION STATEMENT:  Testified in favor of HB 18                              
                                                                               
 ANNE CARPENETI, COUNSEL                                                       
 HOUSE JUDICIARY COMMITTEE                                                     
 Alaska State Legislature                                                      
 State Capitol, Room 120                                                       
 Juneau, AK 99801-1182                                                         
 Telephone:  (907)  465-4990                                                   
 POSITION STATEMENT:  Gave information on HB 18                                
                                                                               
 PREVIOUS ACTION                                                               
                                                                               
 BILL:  HB  19                                                               
 SHORT TITLE: DEFINITION OF "FAULT" FOR CIVIL LIABILITY                        
 SPONSOR(S): REPRESENTATIVE(S) THERRIAULT                                      
                                                                               
 JRN-DATE     JRN-PG               ACTION                                      
 01/06/95        25    (H)   PREFILE RELEASED                                  
 01/16/95        25    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/95        25    (H)   JUD, FIN                                          
 01/30/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/01/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/06/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
                                                                               
 BILL:  HB  18                                                               
 SHORT TITLE: STATUTE OF LIMITATIONS:POLICE/CORONERS                           
 SPONSOR(S): REPRESENTATIVE(S) THERRIAULT                                      
                                                                               
 JRN-DATE     JRN-PG               ACTION                                      
 01/06/95        25    (H)   PREFILE RELEASED                                  
 01/16/95        25    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/95        25    (H)   JUDICIARY                                         
 02/06/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
                                                                               
 BILL:  HB  25                                                               
 SHORT TITLE: CRIMINAL DISCOVERY RULES                                         
 SPONSOR(S): REPRESENTATIVE(S) PARNELL,Porter,Green,Bunde                      
 JRN-DATE     JRN-PG               ACTION                                      
 01/06/95        27    (H)   PREFILE RELEASED                                  
 01/16/95        27    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/95        27    (H)   JUD, FIN                                          
 01/18/95        75    (H)   COSPONSOR(S): GREEN                               
 01/19/95        89    (H)   COSPONSOR(S): BUNDE                               
 01/27/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 01/27/95              (H)   MINUTE(JUD)                                       
 01/30/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 01/30/95              (H)   MINUTE(JUD)                                       
 02/01/95              (H)   FIN AT 01:30 PM HOUSE FINANCE 519                 
 02/06/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
                                                                               
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 95-7, SIDE A                                                             
 Number 000                                                                    
                                                                               
 The House Judiciary Standing Committee was called to order at 1:08            
 p.m. on Monday, February 6, 1995.  A quorum was present.  CHAIRMAN            
 BRIAN PORTER stated the following would be heard:  A presentation             
 on the Impaired Driving Program, HB 19, and HB 18.  He noted that             
 due to the time factor, the hearing for HB 25 would be moved to               
 Wednesday, February 8.                                                        
                                                                               
 Number 048                                                                    
                                                                               
 RON OTTE, COMMISSIONER, DEPARTMENT OF PUBLIC SAFETY introduced Lorn           
 Campbell who was present to explain the Impaired Driving Program.             
                                                                               
 Number 075                                                                    
                                                                               
 LORN CAMPBELL, ADMINISTRATOR, HIGHWAY SAFETY PLANNING AGENCY,                 
 stated the assessment was requested by the Department of Public               
 Safety, Highway Safety Planning Agency, and was conducted by a                
 technical assistance team, the National Highway Safety                        
 Transportation Administration.  He said the team was composed of              
 people having demonstrated abilities in the field of impaired                 
 driving program development, implementation, and evaluation, at               
 both state and local levels.  He named all the members.                       
                                                                               
 MR. CAMPBELL explained that last year, Alaska had the lowest number           
 of traffic fatalities in seven years.  He attributes this to                  
 increased enforcement efforts, and the "headlights on" rule on the            
 highway.  On February 15, there will be a highway transportation              
 safety administration town meeting to discuss a ten year plan to              
 combat highway fatality and injury.  There are plans to combine               
 agency efforts in developing and implementing prevention programs.            
                                                                               
 MR. CAMPBELL said they planned to fund a crime lab toxicologist               
 position and an ion spectrum machine to start testing blood and               
 urine samples for drugs.  The "Cops in the Shop" program in                   
 Anchorage has spread to Fairbanks and the Kenai Peninsula.  The               
 amount of money spent on that program has been increased by                   
 $100,000.  There is a program that trains nurses in the emergency             
 room to go out to the high schools and make presentations on the              
 seriousness of speeding, drinking, and driving to teenage groups.             
 Money may also be allocated for a drug recognition training                   
 program.                                                                      
                                                                               
 MR. CAMPBELL noted that a high priority item for them is to                   
 explore the alternatives for jail space.  From the highway safety             
 standpoint, the Department of Corrections' problem is a big                   
 concern, because it takes anywhere from four weeks to as much as 18           
 months before they can find bed space for people convicted of drunk           
 driving.  This provides little incentive for the drunk driver to              
 not drive drunk.  He books himself in when the time is convenient             
 for him to get in there for a long period of time.                            
                                                                               
 MR. CAMPBELL felt a Governor's Task Force, including a broad base             
 of members, would be beneficial.  He thought the combined efforts             
 of like interest groups would have an affect on the Driving While             
 Intoxicated (DWI) problem.                                                    
                                                                               
 Number 340                                                                    
                                                                               
 REPRESENTATIVE CYNTHIA TOOHEY asked where the National Highway                
 Traffic Safety Administration (NHTSA) town meeting would take                 
 place.                                                                        
                                                                               
 Number 342                                                                    
                                                                               
 MR. CAMPBELL replied it would be held at the Captain Cook Hotel.              
                                                                               
 Number 347                                                                    
                                                                               
 REPRESENTATIVE TOOHEY asked Mr. Campbell if he planned to make                
 headlights mandatory on all highways within the state.                        
                                                                               
 Number 350                                                                    
                                                                               
 MR. CAMPBELL said that is the decision of both the Commissioner of            
 Public Safety and the Commissioner of Highways.  They both want the           
 program expanded, but there is nothing that can be done while most            
 of the ground is frozen.  The signs have already been purchased to            
 include the Parks and the Glenn Highways.  It costs about $500 per            
 sign.  A lot of car makers are going to automatic "headlights on"             
 which shut off when the engine shuts off.  Other states are                   
 becoming interested in this plan.                                             
                                                                               
 Number 370                                                                    
                                                                               
 REPRESENTATIVE CON BUNDE asked if the effectiveness was just                  
 because seeing headlights is a novelty; and if the novelty would              
 wear off and lose the plan's effectiveness.                                   
                                                                               
 MR. CAMPBELL said lights would not be required for short stretches            
 of road, but he believes that when car lights are seen out on the             
 highway, it alerts people to think about the dangerousness of that            
 particular stretch of highway.  He felt the headlights had a                  
 definite deterrent effect.                                                    
                                                                               
 Number 390                                                                    
                                                                               
 REPRESENTATIVE BUNDE asked how the "Cops in Shops" was going, and             
 whether he had details on its effectiveness.                                  
                                                                               
 Number 392                                                                    
                                                                               
 MR. CAMPBELL said this has been effective, along with the "use                
 it/lose it" bill.  He felt it deterred drinking within the teenage            
 group.  This idea has spread to the Kenai Peninsula and Fairbanks             
 areas.                                                                        
                                                                               
 Number 405                                                                    
                                                                               
 REPRESENTATIVE BETTYE DAVIS said while they are talking about                 
 preventative money, she wondered about the money that was earmarked           
 to come out of the Intermodal Surface Transportation Efficiency Act           
 (ISTEA) for prevention purposes.  She asked if any of this money              
 was coming to some of the programs Mr. Campbell had just talked               
 about.                                                                        
                                                                               
 Number 415                                                                    
                                                                               
 CHAIRMAN PORTER asked if she meant the "Helmet" money.                        
                                                                               
 Number 417                                                                    
                                                                               
 REPRESENTATIVE DAVIS said yes.                                                
                                                                               
 Number 418                                                                    
                                                                               
 MR. CAMPBELL brought a list of projects being funded this year and            
 handed it out.  He said the money was being broadly distributed.              
 The accident-free days provided Anchorage, Fairbanks, Palmer,                 
 Juneau and Wasilla with extra overtime for traffic enforcement.               
 All the emergency medical services and "Cops in the Shops" receive            
 funds.  He said the motorcycle helmet money is used for buying                
 traffic equipment for police departments;  $275,000 worth of radar            
 and cameras for 16 cities.  A safety equipment program is in place            
 where cities can quickly get a $5,000 grant to buy things like                
 orange signs, paint stripers, etc.                                            
                                                                               
 MR. CAMPBELL continued, describing the prevention plan.  He felt              
 the Alaska Highway Safety Agency along with the Department of                 
 Education should take the lead in establishing the K-12 traffic               
 safety education programs, with materials emphasizing alcohol and             
 drug impaired driving.  He said the state used to have drivers'               
 education classes, which ended when funding ran out.  He felt it              
 would be a waste of money to implement a training program that may            
 just be funded for a couple of years.  A whole lot of people would            
 have to want this to continue once it was started, to avoid wasting           
 the money.  He felt the staff of the Alcohol Control Board should             
 be increased.  He also felt the law should allow for the revocation           
 of licenses from those who serve underage drinkers.  He felt that             
 if you pulled a bar license, the server could move from bar to bar,           
 so some legislative consideration is due there.  He felt the                  
 officers should have the option of demanding blood tests.                     
                                                                               
 Number 500                                                                    
                                                                               
 REPRESENTATIVE BUNDE asked why the officer would want the choice of           
 giving a blood or breath test.  He guessed you would make the                 
 choice for blood, which is a more expensive test, if you were                 
 suspicious of other drugs involved.                                           
                                                                               
 Number 515                                                                    
                                                                               
 MR. CAMPBELL said yes.                                                        
                                                                               
 Number 520                                                                    
                                                                               
 REPRESENTATIVE VEZEY noted the person being stopped can request a             
 blood test, but the officer cannot.                                           
                                                                               
 Number 525                                                                    
                                                                               
 MR. CAMPBELL explained there is a bill presently pending in the               
 legislature which would make the third and subsequent DWI an                  
 offensive felony.  Another issue up for legislative consideration             
 is vehicle homicide and DWI assault laws.  They would like to                 
 implement a training program to enhance the officers' ability to              
 detect and apprehend DWI suspects at lower levels of blood alcohol            
 content and controlled substances.  He said they will be holding              
 several different courses on the standard field sobriety testing              
 and drug recognition for officers.  Part of the equipment purchases           
 made were portable, hand-held breathalizers.                                  
                                                                               
 MR. CAMPBELL recommended developing a program of sobriety                     
 checkpoints, realizing that the public knowledge of the checkpoints           
 is as much a deterrent as the apprehension that may result.                   
 Sobriety checkpoint legislation was introduced last year, but not             
 this year yet.  He felt that having checkpoints does not arrest               
 more people, it deters them from drinking and driving, and prevents           
 them from being arrested.  The object is not to arrest people, it             
 is to get them to obey the law, so you do not have to arrest them.            
 They also want to expand the Alcohol Safety Action Program (ASAP),            
 which is effective in Anchorage, but has not gone much further than           
 the Anchorage area.  They also want to create intervention programs           
 for young offenders.  They have mini-grants this year of $1,000 for           
 activities at graduation time that will keep the kids in the high             
 schools.  There is a Canadian production show called "Heros" that             
 goes into the high schools throughout the state.  A judicial task             
 force should be formed to include the Department of Corrections,              
 state and local police, and other public safety groups, members of            
 the judiciary, state and local government; persons to form plans to           
 eliminate the overcrowded jails.  We need to look into a process              
 for determining which misdemeanors are prioritized for entrance               
 into the jails.                                                               
                                                                               
 Number 640                                                                    
                                                                               
 CHAIRMAN PORTER asked Mr. Campbell to explain what the 85 percent             
 increase in collections for the ASAP program was all about.                   
                                                                               
 Number 645                                                                    
                                                                               
 MR. CAMPBELL understood that they collect a fee from the clients              
 who use the program.                                                          
                                                                               
 Number 660                                                                    
                                                                               
 REPRESENTATIVE BUNDE thought the decreased number in highway                  
 fatalities last year was due to the efforts of the Department of              
 Public Safety and the Alaska Highway Safety Planning Agency.                  
                                                                               
 CHAIRMAN PORTER thanked Mr. Campbell and Commissioner Otte for                
 presenting their program suggestions.                                         
 HJUD - 02/06/95                                                               
 HB 19 - DEFINITION OF "FAULT" FOR CIVIL LIABILITIES                         
                                                                               
 Number 695                                                                    
                                                                               
 CHAIRMAN PORTER summarized where the committee was on HB 19.  The             
 bill proposed to add something that may not be necessary, but may             
 reduce some court time in trying to establish or not establish that           
 an intentional act is also an act that should be accrued to civil             
 fault.  If they put this into effect, how would it affect the                 
 general case law position which says an intentional actor is often            
 considered totally responsible for culpability of civil wrong.                
 This might diminish someone's recovery from people who are perhaps            
 negligently involved in a wrong, but not from one of the actors who           
 did so intentionally.  While that is an interesting question, it is           
 not a question this bill is asked to answer.  He read the Letter of           
 Intent, which states:                                                         
                                                                               
 "In adding `intentional' to the definition of fault in this                  
 chapter, the committee intends to make it clear that parties                  
 whose actions are arguably intentional may be named or joined                 
 in the litigation, as well as those who are allegedly                         
 negligent or reckless.  The inclusion of intentional                          
 tortfeasors does not preclude consideration of whether                        
 intentional tortfeasor's acts relieve unintentional                           
 tortfeasors of liability."                                                    
                                                                               
 In other words, what this says, is that we are not trying to answer           
 that question regarding the intentional actor's liability.  It is             
 out there to be answered on an individual basis anyway.  What we              
 are doing here is just stating that intentional actors do not get             
 a free ride from civil liability.  He asked if there were any                 
 questions about the Letter of Intent.                                         
                                                                               
 Number 740                                                                    
                                                                               
 REPRESENTATIVE TOOHEY made a motion to adopt the Letter of Intent,            
 which adds "intentional".   No objections were made, so the Letter            
 of Intent was adopted.                                                        
                                                                               
 Number 745                                                                    
                                                                               
 REPRESENTATIVE TOOHEY made a motion to move HB 19 with the Letter             
 of Intent, attached fiscal notes, and individual recommendations.             
 No objections were heard, so the bill moved out of committee.                 
 HJUD - 02/06/95                                                               
 HB 18 - STATUTE OF LIMITATIONS: POLICE/CORONERS                             
                                                                               
 Number 760                                                                    
                                                                               
 WILDA WHITAKER, AIDE TO REPRESENTATIVE GENE THERRIAULT came forward           
 to answer questions about HB 18.  She described this to be an Act             
 amending the statute of limitations for civil actions brought                 
 against peace officers and coroners; bringing them into conformity            
 with the statute of limitations for general civil actions.  It                
 proposes to reduce from three years to two years, the period in               
 which civil actions may be brought against peace officers and                 
 coroners, based on an act performed in an official capacity, or on            
 failure to perform an official duty.  The three year statute                  
 relating to peace officers was enacted for Alaska by Congress in              
 1900.  Congress took the statutes from Oregon which, in turn, took            
 them from New York.  New York's peace officer statute was enacted             
 in 1829.  Its purpose was to benefit peace officers by providing a            
 period of limitations shorter than the general statute, which was             
 six years.  In future years, the statute of limitations for general           
 tort claims has been reduced to two years, with no corresponding              
 change in the peace officer statute.  What started as a protective            
 measure for police officers is no longer serving that purpose.                
 This legislation would serve a twofold purpose of affording police            
 officers the same protection as is provided to the general public,            
 in bringing an antiquated statute into conformity with more recent            
 law.  The statute of limitations would remain for three years, for            
 civil actions currently in progress.  Basically, what started out             
 as a protection for police officers has since become a detriment,             
 and we wanted to bring the statute up to date.                                
                                                                               
 REPRESENTATIVE VEZEY thought if there was a special statute for               
 peace officers and coroners, why not just repeal it, to make them             
 equal to everybody else?                                                      
                                                                               
 MS. WHITAKER said they did repeal AS 09.10.060(a), and then they              
 put it back in, and another one, AS 09.10.070, but it just adds it            
 as a section.  We repealed a section that pertains to peace                   
 officers, and we put it back in another section, so it would still            
 specifically refer to peace officers.                                         
                                                                               
 Number 795                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked why not just be silent on it.  Why do              
 you have to add another paragraph?                                            
                                                                               
 Number 797                                                                    
                                                                               
 MS. WHITAKER did not know.  She guessed they could.                           
                                                                               
 Number 799                                                                    
                                                                               
 CHAIRMAN PORTER asked Anne Carpeneti, Committee Counsel if there              
 was a further answer to that.                                                 
                                                                               
 Number 800                                                                    
                                                                               
 ANNE CARPENETI, COUNSEL, HOUSE JUDICIARY COMMITTEE, said,                     
 subsection (a), which we are moving from one statute to another,              
 specifically applies to an act done in an official capacity, or by            
 the omission of an official duty.  Repealing the statute in hopes             
 that it is covered by another statute, is not very safe.                      
                                                                               
 Number 810                                                                    
                                                                               
 CHARLES FROBENIUS, a private individual from the Matanuska-Susitna            
 Borough testified against HB 18, via teleconference.  He felt there           
 was no reason to change the statute as it is right now, for                   
 specific reasons.  The statutes for criminal proceedings against              
 private individuals will be three to five years.  Peace officers              
 are no longer second class people when they violate laws, or use              
 their position (indisc.).   They should not be treated any                    
 differently.  Their ability to obtain legal assistance and                    
 financial support is quite extensive, if they are in the wrong and            
 someone brings suit against them.  A private individual is nearly             
 hamstrung trying to find legal counsel to support his claim.  How             
 many lawyers do you think you are going to find that are going to             
 go to City Hall?  I have tried; there are few.  It is hard to find            
 witnesses who will testify against an officer.  They do not want to           
 do it for fear of retribution against them, and for good reason.              
 He feels there is no reason to change this law as it stands right             
 now.                                                                          
                                                                               
 Number 850                                                                    
                                                                               
 CHAIRMAN PORTER clarified this bill, saying it would not, in any              
 way, affect an allegation of a criminal act by a police officer or            
 coroner, only the standard civil allegations that come along.                 
                                                                               
 REPRESENTATIVE BUNDE understood that this reduces peace officer               
 protection from three years to two years; so it is, in fact, a                
 disadvantage to the peace officers.                                           
                                                                               
 Number 859                                                                    
                                                                               
 CHAIRMAN PORTER said the statute of limitations for bringing civil            
 actions, is basically two years; which we will be hearing a lot               
 about when we get to another bill.  From the time the act bringing            
 about the problem occurred, or when the person who is harmed                  
 discovers or should have discovered; two years from that time on,             
 a person may bring suit against the person for that act.  Right               
 now, for cops, it is three years.  For everybody else it is two               
 years.                                                                        
                                                                               
 Number 870                                                                    
                                                                               
 MS. WHITAKER pointed out to Mr. Frobenius that they are not making            
 an exception for police officers, it just brings them into                    
 conformity.  They do not get off any easier than anyone else.                 
                                                                               
 Number 872                                                                    
                                                                               
 CHAIRMAN PORTER said Ms. Whitaker's testimony implied that, while             
 police officers were given three years, everyone else had some                
 longer period of time.                                                        
                                                                               
 MS. WHITAKER replied that it used to be three years for police                
 officers, and six years for everyone else.  The reason behind                 
 giving the police officers a shorter statute of limitations, is               
 because they wanted to protect them.  Now that six year period has            
 been shortened to two years, yet the three year limit still applies           
 to police officers, giving them the advantage.                                
                                                                               
 TAPE 95-7, SIDE B                                                             
 Number 000                                                                    
                                                                               
 REPRESENTATIVE TOOHEY made a motion to move the bill with                     
 individual recommendations and attached fiscal notes.                         
                                                                               
 There was no objection, and the bill moved out of committee.                  
 ADJOURNMENT                                                                   
                                                                               
 The House Judiciary Committee adjourned at 2:00 p.m.                          
                                                                               
                                                                               

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