Legislature(1995 - 1996)

02/27/1995 01:05 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
               HOUSE JUDICIARY STANDING COMMITTEE                              
                       February 27, 1995                                       
                           1:05 p.m.                                           
                                                                               
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Brian Porter, Chairman                                         
 Representative Joe Green, Vice Chairman                                       
 Representative Con Bunde                                                      
 Representative Bettye Davis                                                   
 Representative Al Vezey                                                       
 Representative Cynthia Toohey                                                 
 Representative David Finkelstein                                              
                                                                               
 MEMBERS ABSENT                                                                
                                                                               
 None                                                                          
                                                                               
 COMMITTEE CALENDAR                                                            
                                                                               
 * HB 188:  "An Act creating the crime of indecent viewing and                 
            photography."                                                      
                                                                               
            HEARD AND HELD                                                     
                                                                               
    HB 21:  "An Act relating to revocation of a driver's license for           
            illegal possession or use of a controlled substance or             
            illegal possession or consumption of alcohol by a person           
            at least 13 but not yet 21 years of age; and providing             
            for an effective date."                                            
                                                                               
            PASSED OUT OF COMMITTEE                                            
                                                                               
    HB 23:  "An Act relating to referrals involving dental                     
            services."                                                         
                                                                               
            PASSED OUT OF COMMITTEE                                            
                                                                               
 * HB 158:  "An Act relating to civil actions; amending Alaska Rules           
            of Civil Procedure 49, 68, and 95; amending Alaska Rule            
            of Evidence 702; and providing for an effective date."             
                                                                               
            HEARD AND HELD                                                     
                                                                               
   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."                                                             
                                                                               
            BILL POSTPONED                                                     
                                                                               
 (* First public hearing)                                                      
                                                                               
 WITNESS REGISTER                                                              
                                                                               
 REPRESENTATIVE JERRY MACKIE                                                   
 Alaska State Legislature                                                      
 State Capitol, Room 404                                                       
 Juneau, AK 99801-1182                                                         
 Telephone:  (907)  465-4925                                                   
 POSITION STATEMENT:  Sponsor of HB 188                                        
                                                                               
 MORRIS VERVERS, Superintendent                                                
 Klawock School District                                                       
 P.O. Box 9                                                                    
 Klawock, AK 99925                                                             
 Telephone:  (907)  755-2917                                                   
 POSITION STATEMENT:  Testified in favor of HB 188                             
                                                                               
 MARGOT KNUTH, Assistant Attorney General                                      
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK  99811-0300                                                        
 Telephone:  (907)  465-4037                                                   
 POSITION STATEMENT:  Provided information on CSHB 21                          
                                                                               
 REPRESENTATIVE GARY DAVIS                                                     
 Alaska State Legislature                                                      
 State Capitol, Room 420                                                       
 Juneau, AK 99801-1182                                                         
 Telephone:  (907)  465-2693                                                   
 POSITION STATEMENT:  Sponsor of HB 23                                         
                                                                               
 DR. JULIE ROBINSON                                                            
 Alaska Dental Society                                                         
 3400 Spenard Road                                                             
 Anchorage, AK  99501                                                          
 Telephone:  (907)  243-2156                                                   
 POSITION STATEMENT:  Testified in favor of HB 23                              
                                                                               
 BARBARA GABIER, Program Coordinator                                           
 Division of Occupational Licensing                                            
 Department of Commerce and Economic Development                               
 P.O. Box 110806                                                               
 Juneau, AK 99811-0806                                                         
 Telephone:  (907)  465-2534                                                   
 POSITION STATEMENT:  Testified in favor of HB 23                              
                                                                               
 ANNE CARPENETI, Committee Aide                                                
 House Judiciary Committee                                                     
 State Capitol, Room 120                                                       
 Juneau, AK 99801-1182                                                         
 Telephone:  (907)  465-4990                                                   
 POSITION STATEMENT:  Provided information on HB 158                           
                                                                               
                                                                               
 PREVIOUS ACTION                                                               
                                                                               
 BILL:  HB 188                                                               
 SHORT TITLE: INDECENT PHOTOGRAPHY                                             
 SPONSOR(S): REPRESENTATIVE(S) MACKIE, Porter, Phillips, Robinson,             
             Navarre, Green, James, Kubina, Elton                              
                                                                               
 JRN-DATE     JRN-PG                  ACTION                                   
 02/20/95       419    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 02/20/95       419    (H)   JUDICIARY, FINANCE                                
 02/22/95       456    (H)   COSPONSOR(S): KUBINA                              
 02/23/95       469    (H)   COSPONSOR(S): ELTON                               
 02/27/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
                                                                               
 BILL:  HB 21                                                                
 SHORT TITLE: DRIVER'S LIC REVOCATION;ALCOHOL/DRUGS                            
 SPONSOR(S): REPRESENTATIVE(S) PORTER, TOOHEY                                  
                                                                               
 JRN-DATE     JRN-PG                  ACTION                                   
 01/06/95        26    (H)   PREFILE RELEASED                                  
 01/16/95        26    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/95        26    (H)   TRA, JUD, FIN                                     
 02/08/95              (H)   TRA AT 01:00 PM CAPITOL 17                        
 02/08/95              (H)   MINUTE(TRA)                                       
 02/10/95       294    (H)   TRA RPT  CS(TRA) 4DP 3NR                          
 02/10/95       294    (H)   DP: JAMES, MACLEAN, WILLIAMS, G.DAVIS             
 02/10/95       294    (H)   NR: MASEK, BRICE, SANDERS                         
 02/10/95       295    (H)   3 ZERO FN (DPS, LAW, DHSS) 2/10/95                
 02/27/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
                                                                               
 BILL:  HB 23                                                                
 SHORT TITLE: REFERRALS INVOLVING DENTAL SERVICES                              
 SPONSOR(S): REPRESENTATIVE(S) G.DAVIS BY REQUEST                              
                                                                               
 JRN-DATE     JRN-PG                  ACTION                                   
 01/06/95        26    (H)   PREFILE RELEASED                                  
 01/16/95        26    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/95        26    (H)   HES, JUD                                          
 02/07/95              (H)   HES AT 03:00 PM CAPITOL 106                       
 02/07/95              (H)   MINUTE(HES)                                       
 02/08/95       266    (H)   HES RPT 6DP                                       
 02/08/95       266    (H)   DP: ROKEBERG, G.DAVIS, BUNDE, TOOHEY              
 02/08/95       266    (H)   DP: ROBINSON, BRICE                               
 02/08/95       266    (H)   ZERO FISCAL NOTE (DCED) 2/8/95                    
 02/27/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
                                                                               
 BILL:  HB 158                                                               
 SHORT TITLE: CIVIL LIABILITY                                                  
 SPONSOR(S): REPRESENTATIVE(S) PORTER, Toohey, Mulder                          
                                                                               
 JRN-DATE     JRN-PG                  ACTION                                   
 02/06/95       253    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 02/06/95       253    (H)   JUDICIARY, FINANCE                                
 02/17/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/20/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/20/95              (H)   MINUTE(JUD)                                       
 02/27/95              (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)   JUDICIARY, FINANCE                                
 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                       
 02/06/95              (H)   MINUTE(JUD)                                       
 02/08/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/08/95              (H)   MINUTE(JUD)                                       
 02/13/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/13/95              (H)   MINUTE(JUD)                                       
 02/15/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/15/95              (H)   MINUTE(JUD)                                       
 02/17/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/17/95              (H)   MINUTE(JUD)                                       
 02/22/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/22/95              (H)   MINUTE(JUD)                                       
 02/27/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
                                                                               
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 95-17, SIDE A                                                            
 Number 000                                                                    
                                                                               
 The House Judiciary Standing Committee was called to order at 1:05            
 p.m. on Monday, February 27, 1995.  A quorum was present.  CHAIRMAN           
 BRIAN PORTER stated the following bills would be heard:  HB 188,              
 CSHB 21, HB 23, and then a work session on HB 158.   He called                
 Representative Jerry Mackie to come forward and introduce HB 188.             
                                                                               
 HJUD - 02/27/95                                                               
 HB 188 - INDECENT PHOTOGRAPHY                                               
                                                                               
 REPRESENTATIVE JERRY MACKIE, Sponsor of HB 188 read the following             
 sponsor statement:                                                            
                                                                               
 "HB 188 establishes the crime of indecent viewing and photography             
 for anyone viewing, making a picture or video taping an                       
 individual's nakedness without their knowledge or consent.  I                 
 introduced the bill in response to an incident that occurred                  
 recently in one of my schools which revealed a major loophole in              
 the state's invasion of privacy laws.  The incident was the                   
 inadvertent discovery by students of a hidden video surveillance              
 system in the girls' locker room.                                             
                                                                               
 "Following the discovery, the initial reaction of dismay rapidly              
 changed to strong feelings of anger, betrayal, and embarrassment              
 throughout the community.  In all small communities, the school               
 gymnasium and shower facilities are used by practically everyone in           
 town.  They are also used by many visitors from neighboring                   
 communities that come to participate in local events.  So the                 
 hidden recording system had potential implications for a whole lot            
 of people in the region, both students and adults.                            
                                                                               
 "Equally distressing was the revelation that neither the state's              
 invasion of privacy laws nor the child pornography laws applied to            
 the situation.  Unauthorized, hidden photographic surveillance by             
 itself is not prohibited, even if the unsuspecting person is naked.           
 There is no foundation then to the public's expectation and trust             
 that privacy exists and is protected especially in places like                
 lavatories, bathrooms, and dressing rooms.                                    
                                                                               
 "I introduced HB 188 to close this loophole in our privacy laws so            
 that there is a deterrent to the commission of indecent viewing and           
 photographing in the future."                                                 
                                                                               
 Number 105                                                                    
                                                                               
 REPRESENTATIVE AL VEZEY had questions about security surveillance.            
 It is addressed on page 2, subsection (d).  He asked if you were              
 doing a security surveillance, and you went back to look at the               
 video tapes to find out who the person is, how are you going to               
 know what sex the person is, if you do not know who the person is?            
                                                                               
 REPRESENTATIVE MACKIE explained there are instances where there are           
 security surveillance systems that protect buildings.  If they are            
 properly posted, and it is within the realm of security                       
 surveillance, if an individual went up and bared themself in front            
 of a security surveillance camera, whoever is viewing that camera             
 cannot be charged with an offense.  It is actually protecting those           
 that have legitimate security systems in their homes or public                
 facilities.  It is an affirmative defense for the owners of those             
 security systems so they cannot be charged under this law.  That is           
 the reason that needed to be in there.                                        
                                                                               
 Number 145                                                                    
                                                                               
 REPRESENTATIVE VEZEY said the biggest thing that concerns him is              
 that it exempts persons in security surveillance only if they are             
 the same sex as the person being viewed.  That appears to be quite            
 a burden to place on the person with the security system, and their           
 employees.  In respect for property owners' rights, why should we             
 require that a legitimate enterprise post that they are doing                 
 security surveillance?  If something happened to the posted notice,           
 would the people doing the surveillance be convicted of a felony?             
 Signs get ripped down and vandalized.                                         
                                                                               
 Number 175                                                                    
                                                                               
 REPRESENTATIVE MACKIE said people just need to make reasonable                
 attempts to make sure the signs are posted.  For example, if a                
 school decides to have security surveillance cameras in a locker              
 room because the locker rooms keep being vandalized, as long as it            
 is a member of the same sex who is just viewing the room, that                
 should be allowed for security reasons.                                       
                                                                               
 Number 200                                                                    
                                                                               
 REPRESENTATIVE VEZEY thought they should put a period right after             
 the word "system" and not worry about the "ifs," "ands" or "buts."            
                                                                               
 REPRESENTATIVE MACKIE did not want to disallow the affirmative                
 defense.  The whole purpose of this bill is to say that if you have           
 a reasonable expectation to the right to privacy, then you should             
 be afforded that right.  If it is posted that there is security               
 surveillance, it is probably not going to be somewhere where you              
 are taking a shower and certainly not being monitored by a person             
 of the opposite sex.                                                          
                                                                               
 CHAIRMAN PORTER said they would hold the bill, while a committee              
 substitute was drafted with a little different language                       
 incorporating these concerns.                                                 
                                                                               
 Number 300                                                                    
                                                                               
 MORRIS VERVERS, Superintendent, Klawock School District, testified            
 via teleconference.  He described the events that happened in their           
 school.  A student spotted a hidden camera in the girls locker room           
 which led to a series of video equipment systems in the attic,                
 including the capacity for videotaping and viewing from several               
 different angles in the girls locker room.  The police and state              
 troopers investigated the situation.  This was psychologically                
 traumatic to the students and staff, who were offered counseling.             
 At that time they were not aware this incident was not a violation            
 of law.  Had they known at the time this deed was not in violation            
 of the law, the trauma would have been much greater.  The only                
 thing this individual can be charged with is misuse of equipment              
 and possible damage to the locker room, but nothing regarding                 
 invasion of privacy.  He wanted to see a bill passed that would               
 protect students from this kind of thing happening.  He agreed the            
 language on posting a notice was a bit complicated, and was in                
 support of cleaning that up a little.                                         
                                                                               
 Number 370                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked if anyone had looked into what civil               
 recourse was available.                                                       
                                                                               
 MR. VERVERS replied there had been no stone unturned in the                   
 Attorney General's Office, including the possibility of someone               
 suing the school for violation of privacy.                                    
                                                                               
 REPRESENTATIVE VEZEY asked if any individuals involved had looked             
 into recourse in the civil courts for personal violations of their            
 civil rights.                                                                 
                                                                               
 MR. VERVERS thought some groups have looked into it, but he was not           
 aware of any of them pursuing it to the point where it could be               
 determined whether they have a legitimate case.                               
                                                                               
 REPRESENTATIVE MACKIE made it known to the committee the individual           
 has been charged with criminal mischief for drilling holes in the             
 ceiling of the school, and misusing some of the school's video                
 equipment.  That was the most they could do.  He urged the                    
 committee to further look into this matter, and form the language             
 to close up this loophole.                                                    
                                                                               
 CHAIRMAN PORTER noted it has been suggested on page 2, line 11, the           
 definition of "picture" include, after the word "electronic" on               
 line 12, "magnetic" so as to include video taping in this category.           
 He wanted to delete everything in the section on page 2, line 14,             
 after the word "that", and add "Private exposure means that a                 
 person is exposed in a place or under circumstances that the person           
 would reasonably believe they were not being viewed and would not             
 be produced in a picture.  He suggested they put these three                  
 considerations into a committee substitute.  He then closed the               
 discussion on HB 188.                                                         
                                                                               
 HJUD - 02/27/95                                                               
 CSHB 21 - DRIVER'S LIC. REVOCATION;ALCOHOL/DRUGS                            
                                                                               
 Number 585                                                                    
                                                                               
 REPRESENTATIVE CYNTHIA TOOHEY, bill sponsor, explained the bill.              
 House Bill 21 closes a small, but important loophole in House Bill            
 299 which passed last year.  The administrative license revocation            
 can only occur when there has been a violation of the pertinent               
 state law.  That law should be amended to include municipal                  
 ordinance as well as state law.  House Bill 21 does this.  There             
 are zero fiscal notes from the Department of Public Safety, the               
 Department of Health and Social Services, and the Department of               
 Law.  The simple fix will cost the state nothing, but will increase           
 the effectiveness of the law.  She proposed an amendment, on page             
 2, line 23; it was pointed out that one would assume that a                   
 municipal ordinance would pertain to drug or alcohol violations;              
 qualification would leave no doubt.                                           
                                                                               
 Number 615                                                                    
                                                                               
 MARGOT KNUTH, Assistant Attorney General, Department of Law,                  
 Criminal Division, testified in support of this legislation.  She             
 asked the committee to consider another technical change that would           
 address the existing problem with the "use it - lose it" law.  We             
 are requiring both probable cause and personal observation by the             
 officer.  For the underlying offenses, probable cause is sufficient           
 for a case to be made, and for there to be a conviction.  So we               
 have an anomalous situation where the child can be convicted, but             
 is not subject to the "use it - lose it" provision, when it is                
 appropriate that there be consistency.  One place this occurs is on           
 page 1, line 7.  With this change it would read, "if a peace                  
 officer has probable cause to believe that a person is at least 14            
 years of age".  The same change could be made on page 2, line 17              
 and 18, replacing "and based on personal observations"  with "to              
 believe".  Then it would read, "...one, that the officer had                  
 probable cause to believe that the person was at least 14 years of            
 age and under 21 years of age."  This would create harmony in the             
 law with what we are doing with the violations and with citing                
 these juveniles.                                                              
                                                                               
 MS. KNUTH stated the second issue that has come up with the "use it           
 - lose it" since the law was enacted, is whether military police              
 qualify as peace officers, allowing them to enforce this law.  They           
 would like to, but are not certain whether they are included or               
 not.                                                                          
                                                                               
 CHAIRMAN PORTER noted that a military police officer is not a peace           
 officer by federal law.  You cannot be a police officer and serve             
 in the military at the same time.                                             
                                                                               
 Number 790                                                                    
                                                                               
 REPRESENTATIVE VEZEY thought they could put into the statute that             
 this particular situation includes military officers.  He mentioned           
 this bill does not make the peace officer have to see the juvenile            
 in the act of drinking.                                                       
                                                                               
 CHAIRMAN PORTER added the minor who is, visually, obviously                   
 intoxicated, cannot right now, be arrested.  The juvenile can only            
 be cited, given a ticket, and sent on his way.  That is what we are           
 trying to change.  We want to be able to take this individual into            
 custody because he is in a position of potential danger.  A                   
 juvenile could not have his license suspended under the "use it -             
 lose it," as it stands now.                                                   
                                                                               
 REPRESENTATIVE JOE GREEN made a motion to adopt Version G of the              
 committee substitute as their working draft.                                  
                                                                               
 Number 800                                                                    
                                                                               
 REPRESENTATIVE TOOHEY made a motion to move the amendment offered             
 by Margot Knuth, as described above.  Seeing no objection, the                
 amendment passed.  She then made a motion to move Amendment Number            
 2, which would delete from page 2, line 23, "a violation of AS                
 11.71, [OR] AS 04.16.050, or a municipal ordinance;" and insert:              
 "(A) a violation of AS 11.71 or AS 04.16.050; or (B) possession or            
 use of a controlled substance or alcohol in violation of a                    
 municipal ordinance."  There was no objection to the amendment so             
 it was adopted.                                                               
                                                                               
 REPRESENTATIVE CON BUNDE made a motion to move CSHB 21, as amended,           
 with individual recommendations and zero fiscal notes, out of                 
 committee.  Seeing no objection, it was so ordered.                           
                                                                               
 HJUD - 02/27/95                                                               
 HB 23 - REFERRALS INVOLVING DENTAL SERVICES                                 
                                                                               
 Number 848                                                                    
                                                                               
 REPRESENTATIVE GARY DAVIS, sponsor of the bill, read his sponsor              
 statement:                                                                    
                                                                               
 "House Bill 23 would prohibit the receipt of compensation by a                
 dentist for referring a person to another dentist or dental                   
 practice.  The American Dental Association Code of Ethics prevents            
 dentists from profiting from referrals.  This legislation codifies            
 the ethical concern relating to referrals.                                    
                                                                               
 "In Section 2, the receipt of compensation by a person or                     
 advertisement referring a dental service is prohibited unless the             
 compensation for referral is disclosed at the time of referral.               
 This legislation will help ensure that patients are being referred            
 to a dentist or dental practice as a result of their quality                  
 service.                                                                      
                                                                               
 "The Alaska Dental Society has had several breeches of their ethics           
 code and their board has requested this legislation.  I feel this             
 is an appropriate legislative function of the Board of Dental                 
 Examiners under AS 08.36.315."                                                
                                                                               
 TAPE 95-17, SIDE B                                                            
 Number 000                                                                    
                                                                               
 REPRESENTATIVE DAVIS continued to explain the two main reasons for            
 this bill.  One is the public's protection, the other is to comply            
 with the National Dentistry Code of Ethics.                                   
                                                                               
 REPRESENTATIVE GREEN thought the dental society could handle their            
 ethics problems without involving the government.                             
                                                                               
 REPRESENTATIVE DAVIS answered that is a legal question he cannot              
 answer, because it is not specifically stated in statute, under               
 their duties and functions, whether a board or the state has                  
 jurisdiction.                                                                 
                                                                               
 Number 165                                                                    
                                                                               
 DR. JULIE ROBINSON, past President, American Dental Society,                  
 testified via teleconference from Anchorage.  She described this              
 bill to be a consumer protection measure.  It is in accord with the           
 American Dental Association Code of Ethics which forbids fee                  
 splitting, and other means of compensation for referrals.  The                
 Dental Society believes if an agency advertises a referral service            
 for which a participating dentist is paying a fee, then they should           
 disclose that information to the consumer.  In the past, the                  
 consumer has been led to believe the participating dentists are               
 recommended by the American Dental Association, when in fact, they            
 are paying for this referral service.  The quality of the dental              
 service is not considered or verified.  The American Dental Society           
 hopes this legislation will protect the consumer from misleading              
 advertisement.                                                                
                                                                               
 Number 200                                                                    
                                                                               
 REPRESENTATIVE BUNDE asked if the Code of Ethics does not apply to            
 all dentists; in that you can be a licensed dentist, but not a                
 member of the Dental Society.                                                 
                                                                               
 DR. ROBINSON answered that was correct.                                       
                                                                               
 REPRESENTATIVE VEZEY said if a dentist does not belong to the                 
 Dental Society, are still subject to the Dental Board, which cannot           
 pose its ethical standards at this time.                                      
                                                                               
 DR. ROBINSON said she thought that was correct.  The power of the             
 board is limited.  They have only one dentist on their list of                
 referral.  She believed this needed to be in place in order for the           
 board to do something about it.                                               
                                                                               
 Number 245                                                                    
                                                                               
 REPRESENTATIVE VEZEY said he did not care what the Dental Society             
 does.  That is a private association.  We are talking about the               
 Alaska Dental Board.                                                          
                                                                               
 Number 290                                                                    
                                                                               
 BARBARA GABIER, Program Coordinator, Division of Occupational                 
 Licensing, Department of Commerce and Economic Development,                   
 responded to the questions regarding the Code of Ethics.  Those               
 licensing boards who have adopted a code of ethics have been                  
 required to do so either through statute or regulation.  When they            
 have authority to adopt such regulations, they do have to adopt               
 them by reference of a specific date of code of ethics.  At this              
 point, she was not aware if the Board of Dental Examiners had                 
 adopted a code of ethics.  She added, the Board of Dental Examiners           
 did receive a copy of this bill at their last board meeting and did           
 not make any comments one way or the other.                                   
                                                                               
 REPRESENTATIVE BUNDE thought the problem was more widespread than             
 what he is hearing.  If this only affects one or two dental offices           
 throughout the state, it sounds like the problem might self                   
 correct, and these people will go away.  He could not imagine a               
 referral service could keep going with only one or two clients.               
                                                                               
 REPRESENTATIVE TOOHEY said this is a very widespread problem among            
 the states, and we are just becoming a part of the problem.                   
                                                                               
 CHAIRMAN PORTER thought this would provide an ounce of prevention.            
                                                                               
 REPRESENTATIVE TOOHEY moved to pass HB 23 out of committee with               
 individual recommendations and zero fiscal notes.  Hearing no                 
 objection, it was so ordered.                                                 
                                                                               
 HJUD - 02/27/95                                                               
 HB 158 - CIVIL LIABILITY                                                    
                                                                               
 Number 360                                                                    
                                                                               
 CHAIRMAN PORTER, sponsor of the bill, stated he would explain it,             
 section by section.  He explained that a tort is a private or civil           
 wrong.  It occurs as a result of an act or omission for which a               
 civil suit can be brought.  It involves almost everything, except             
 crimes.  He informed the committee members they were free to stop             
 him to ask questions.  He described what is in the Sectional                  
 Summary, beginning with Section 2:                                            
                                                                               
 "GENERAL STATUTE OF REPOSE:  A law that prevents suits from being             
 brought after a certain period of time, regardless of whether or              
 not the statute of limitations has expired.  Statutes of repose               
 begin running when a product is sold or a procedure is performed,             
 instead of at the time an injury is discovered.                               
                                                                               
 "The purpose of this section is to make it clear that legal actions           
 involving personal injury, death, or property damage must be                  
 brought within a fair and reasonable time.  All crimes have a                 
 statute of limitations in our legal code.  The same standard of               
 fairness should also apply to civil lawsuits.                                 
                                                                               
 "This section is considered a statute of repose, prescribing an               
 eight year period within which any civil action involving injury,             
 death, or property damage must be filed with the courts.  The time            
 period is measured from the date the construction was completed or            
 the last act that allegedly caused the harm.                                  
                                                                               
 "The eight year period would not apply if the injury, death,                  
 property damage was caused by an intentional act or if there was              
 intentional concealment of facts that resulted in a delay of over             
 eight years before the basis for legal action was known.  This                
 section does apply if a shorter period of time for bringing a                 
 particular legal action imposed under another provision of law                
 applies.  The terms for completed construction are defined and                
 clarified so as not to be misinterpreted by litigants or courts."             
                                                                               
 Number 550                                                                    
                                                                               
 REPRESENTATIVE TOOHEY asked about DES, a fertility drug given to              
 mothers in the 1950s.                                                         
                                                                               
 CHAIRMAN PORTER said the statute of repose previously addressed               
 product liability.  There is some specific language that was in the           
 bill last year regarding product liability which we have taken out.           
 There was also, under Section 2, "The last act alleged to have                
 caused the personal injury, death, or property damage..."  could              
 allude to a general statement on product liability, and that is not           
 our intent.  The amendment he would offer later on will take that             
 out.  This applies to construction and medical cases, but not to              
 product liability.                                                            
                                                                               
 Number 575                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN asked about a situation under Section 2,           
 where, perhaps a building is constructed over four years, and the             
 act alleged to have caused personal injury is the faulty pouring of           
 the concrete.  It sounds like Section 1 applies to a building, does           
 Section 2 apply as well?  In this case, it would not be eight years           
 from completion of the building, it would be only five years from             
 completion of the building.                                                   
                                                                               
 CHAIRMAN PORTER answered that the substantial completion of the               
 construction would be the specific qualification for the time that            
 would start any construction claim; not when the subcontractor has            
 done things prior to the substantial completion.                              
                                                                               
 CHAIRMAN PORTER continued, "Section 3, LIMITATION ON ACTIONS                  
 AGAINST HEALTH CARE PROVIDERS:  A law that requires lawsuits to               
 begin within a specified time period from when the plaintiffs knew            
 they were injured.  When the statute of limitations has expired,              
 the lawsuit can no longer be brought.                                         
                                                                               
 "Under current law, in medical malpractice claims, one may file a             
 claim within two years upon discovering the injury.  This section             
 states that the two-year limitation does not apply to minors under            
 the age of six.  Minors must bring legal actions within two years             
 or before their eighth birthday - whichever is longer.  Tolling of            
 the time limitation provides additional protection for minors.  The           
 clock stops, if fraud by a parent, guardian, insurer, or health               
 provider, is the reason action was not taken.  Time is also                   
 extended for minors if there was an intentional concealment of                
 facts, or the undiscovered presence of a foreign body with no                 
 therapeutic or diagnostic purpose, provided this specification                
 applies to the legal action being brought.                                    
                                                                               
 "The third part of this amendment defines terms to ensure that the            
 statute is understood and applied fairly."                                    
                                                                               
 CHAIRMAN PORTER then went on to explain that the eight years                  
 statute of repose would apply to a situation where a foreign body,            
 such as a forceps, is left inside of a person's rib cage during               
 surgery.  He continued, "Section 4, CERTAIN STATUTORY LIABILITIES             
 TO BE BROUGHT IN TWO YEARS:  This section removes unclear and                 
 conflicting language from the statute.  The existing two-year limit           
 for actions involving libel, slander, assault, battery, seduction,            
 or false imprisonment remains the same.                                       
                                                                               
 "Section 5,  GENERAL STATUTE OF LIMITATIONS:  This section places             
 a two-year limit on actions involving injury, death, or property              
 damage after the date claimants could reasonably believe they had             
 a claim.                                                                      
                                                                               
 "It requires that a person commence a civil action for personal               
 injury, death, or property damage within two years of the time the            
 person knows or should have known of the injury, death or damage.             
 It provides that this section does not apply if a shorter period of           
 time is required under another provision of law."                             
                                                                               
 Number 675                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN asked what the definition for "accrual             
 of action" was.                                                               
                                                                               
 CHAIRMAN PORTER answered "accrual of action" is a common legal                
 term, that is defined in statute.                                             
                                                                               
 Number 685                                                                    
                                                                               
 ANNE CARPENETI, Committee Aide, said it is defined in Title 9.                
                                                                               
 CHAIRMAN PORTER said "Section 6, NONECONOMIC DAMAGES:  Money                  
 awarded that does not compensate the injured person for monetary              
 loss, but rather, for example, for pain and suffering.                        
                                                                               
 "Economic damages:  Money awarded to an injured person to                     
 compensate for his or her actual monetary loss.  For example,                 
 economic damages compensate for medical costs and lost wages.                 
                                                                               
 "This section extends the definition for noneconomic losses to                
 include claims for wrongful death as well as personal injury.  The            
 definition is clarified by removing "negligence" which is difficult           
 to establish or disprove.  The change further defines noneconomic             
 losses to include loss of consortium, (i.e., the right to a                   
 husband's or wife's fellowship).                                              
                                                                               
 "This section provides that damages for noneconomic losses are                
 limited to certain types of injuries, such as pain and suffering;             
 limits damages for noneconomic losses to $300,000, except that                
 damages are limited to $500,000 for certain specified injuries;               
 provides an exception for damages awarded against a person                    
 committing or attempting to commit a felony; provides that multiple           
 injuries sustained as a result of a single incident shall be                  
 treated as a single injury for the purpose of this section."                  
                                                                               
 Number 765                                                                    
                                                                               
 CHAIRMAN PORTER continued, "Section 7, PUNITIVE DAMAGES:  Sometimes           
 called exemplary damages, punitive damages are awarded in to punish           
 a defendant for a malicious, intentional act rather than one that             
 is merely negligent.                                                          
                                                                               
 "The current statute allows punitive damages to be awarded when               
 there is `clear and convincing evidence,' but, does not explain               
 evidence in what actions.  This section requires that punitive                
 damages may not be awarded unless malice or conscious acts showing            
 deliberate disregard of another person by the person from whom the            
 punitive damages are sought is shown.                                         
                                                                               
 "Section 8, LIMIT OF PUNITIVE DAMAGE AWARD:  Any awards for                   
 punitive damages will be at most $300,000 or up to three times the            
 amount of compensatory damages awarded.  Further, one-half of the             
 award will be deposited into the general fund of the state.                   
                                                                               
 "Section 9, DAMAGE CALCULATION:  The term `death' is added so that            
 the statute applies to damages awarded for legal actions involving            
 both personal injury and death.                                               
                                                                               
 "The added text states that after past and future economic and                
 noneconomic losses have been calculated by the court, the amount of           
 state and federal taxes that would have been paid is subtracted               
 from the award.  The amount of tax should be calculated using the             
 state and federal tax rate at the time of the injury or death.                
                                                                               
 "IRS code 104(A)(2) allows income from awards involving personal              
 injury or death to be exempt.  Under current statutes, awards are             
 calculated as the gross loss to the claimant.  Therefore, the                 
 prevailing party is awarded their actual past and projected loss,             
 plus the amount they would have paid in taxes under normal                    
 circumstances.  Claimants are being compensated as if future                  
 earnings were tax exempt.                                                     
                                                                               
 "This section ensures that the prevailing party is fairly                     
 compensated for actual after-tax losses.  Specifying how the tax              
 rates should be calculated removes the need to speculate how much             
 future taxes will be and prevents future litigation for award                 
 adjustments."                                                                 
                                                                               
 TAPE 95-18, SIDE A                                                            
 Number 000                                                                    
                                                                               
 CHAIRMAN PORTER said, "Section 10,  PERIODIC PAYMENTS:  Under a               
 periodic payment system, lawsuit awards are paid to the plaintiff             
 throughout his or her lifetime, for the period of disability or for           
 any other set period, instead of a lump sum.                                  
                                                                               
 "This section changes the phrase `an injured party' to `a party.'             
 This allows anyone involved in the suit, rather than just the                 
 claimant, to request periodic payments for amounts awarded for                
 future damages.                                                               
                                                                               
 "Requires that future economic and noneconomic damages that exceed            
 $100,000 be paid periodically whether or not it is requested by a             
 party.  Provides that a portion of a judgment owed to an attorney             
 under a contingent fee agreement, must be reduced to present value            
 and paid in a lump sum."                                                      
                                                                               
 Number 070                                                                    
                                                                               
 REPRESENTATIVE GREEN asked about the possible scenario where there            
 is going to be $100,001 payment over a three year period, and the             
 attorney's fee is one-third.  If you discount the second and third            
 year to the present, it is conceivable that the awardee would be              
 out for almost his first year's compensation.  Because a third of             
 that is brought forward to the second and third year, according to            
 the way this is written.                                                      
                                                                               
 CHAIRMAN PORTER said the attorney's fee is taken out of the award,            
 reduced to present value, and given to the attorney.  Still you are           
 right.  If, for example, there were a three-year award of $50,000             
 each, that would be $150,000 due the plaintiff.  If the contingent            
 fee was 50 percent, which is quite high, but if it were, that would           
 reduce it to $75,000, and that is what would be spread out over               
 three years.  The $75,000 would be given to the attorney in a lump            
 sum, while the remaining $75,000 would be spread out over a three             
 year period to the plaintiff.                                                 
                                                                               
 Number 175                                                                    
                                                                               
 CHAIRMAN PORTER explained "Section 11, SECURITY FOR PERIODIC                  
 PAYMENTS:  Requires that the court require security be posted for             
 periodic payments, except when the obligation is recognized by the            
 state or an insurer.  Requires that the judgment include increases            
 for future anticipated inflation.  Provides to the judgment                   
 creditor damages caused by the failure to make periodic payments,             
 including costs and attorney fees.                                            
                                                                               
 "Section 12, INFLATION ADJUSTMENTS FOR PERIODIC PAYMENTS:  The                
 words `for personal injury or death' are added to the statute.                
 This section clarifies what types of damage awards are being                  
 regulated by this statute.                                                    
                                                                               
 "Courts must specify the percentage or the method for increases by            
 future periodic payments will increase to cover inflation.                    
                                                                               
 "By specifying the amount or method allowed for inflation, the                
 amendment prevents future litigation for an adjustment of the                 
 original award.                                                               
                                                                               
 Number 300                                                                    
                                                                               
 "Section 13, COLLATERAL BENEFITS:  A trial where the jury is not              
 told that the injured person has received money for their injury              
 from other sources, such as an insurance policy or another                    
 defendant.                                                                    
                                                                               
 "This prevents unjust enrichment from claimants who collect                   
 multiple awards for the same loss.                                            
                                                                               
 "Prohibits a claimant from recovering damages that duplicate                  
 amounts received from collateral sources.  Provides exceptions for            
 certain collateral sources that are subrogated to the claimant, and           
 for death benefits and workers' compensation benefits.  Allows a              
 person defending a claim to introduce evidence of amounts received            
 from certain collateral sources.  Prohibits a person who provides             
 a collateral benefit that is introduced into evidence from                    
 recovering that amount from the claimant or being subrogated the              
 rights of the claimant.                                                       
                                                                               
 Number 360                                                                    
                                                                               
 "Section 14, APPORTIONMENT OF FAULT:  Provides that the court shall           
 determine each party's equitable share of the obligation to each              
 claimant.  Provides that assessment may only be used to measure               
 percentages of fault and not to subject a person to civil                     
 liability.                                                                    
                                                                               
 "The word `party' creates a loophole that restricts apportionment             
 of fault to those named in the legal action.  By considering all              
 persons or entities which contributed to a loss, each is fairly               
 apportioned a degree of fault based on their own actions.                     
                                                                               
 "Thus, this section provides that the court shall determine each              
 party's equitable share of the obligation to each claimant.                   
 Provides that an assessment may only be used to measure percentages           
 of fault and not to subject a person to civil liability.                      
                                                                               
 "Section 15, APPORTIONMENT OF FAULT:  Changes the statute number to           
 conform with revised law and clarifies the rules so that all                  
 parties that contributed to injury or death are fairly considered             
 when assessing the percentage of fault.                                       
                                                                               
 "Section 16, EFFECT OF RELEASE:  Provides that a release given in             
 good faith does not discharge another person from liability, but              
 does reduce the total amount awarded by the jury or court by the              
 amount stipulated in the release or the consideration paid for it,            
 whichever is greater.                                                         
                                                                               
 Number 450                                                                    
                                                                               
 "Section 17, OFFERS OF JUDGMENT:  The existing statute says that              
 prior to 10 days before trial begins, either party can make an                
 offer to settle a claim, plus accrued costs.  This must be accepted           
 within 10 days and correctly recorded by the clerk.                           
                                                                               
 "If the court's judgment is less favorable to the recipient of the            
 offer, the person who refused the offer must pay the offerer's                
 costs and attorney fees incurred since the date when the higher               
 offer to settle was made."                                                    
                                                                               
 Number 520                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN felt this provision would cover                    
 unreasonable offers as well as reasonable offers.                             
                                                                               
 REPRESENTATIVE VEZEY agreed the wording was vague.                            
                                                                               
 CHAIRMAN PORTER continued, "Section 18, PREJUDGMENT INTEREST:  The            
 section changes the interest rates on judgments and decrees from a            
 set 10.5 percent a year to a floating rate of 3 percent above the             
 federal discount rate in effect January 2nd of the year of the                
 judgment.  This rate is not used if a different rate has previously           
 been agreed to by contract.                                                   
                                                                               
 "Federal discount rates have been as low as 1 percent (1942) and as           
 high as 14 percent (1981).  Allowing annual adjustments for                   
 prejudgment interest brings charges in line with the current market           
 and prevents unfairly high or low rates.                                      
                                                                               
 "Provides that the rate of interest on judgments and decrees,                 
 including prejudgment interest, is equal to prejudgment interest              
 for certain future damages or punitive damages.                               
                                                                               
 "Section 19, PREJUDGMENT INTEREST:  The purpose for the prejudgment           
 interest is to allow claimants reimbursement of funds that would              
 normally have been in their possession plus any interest that                 
 amount could have earned prior to the trial.  This is not the case            
 in damages awarded for future losses and these sums can be invested           
 and interest earned on the funds.                                             
                                                                               
 "Prejudgment interest is subject to federal income tax and attorney           
 fees commission.                                                              
                                                                               
 "Section 20, UNIFORM ARBITRATION ACT:  Amends the section on                  
 application of the Uniform Arbitration Act so that it applies to              
 the statutes as listed after adoption of House Bill 158.                      
                                                                               
 "Section 21, MEDICAL EXPERT WITNESS QUALIFICATION:  This section              
 establishes qualifications for an expert witness to testify on                
 issues relating to appropriate medical standard of care unless the            
 witness is a health care provider.                                            
                                                                               
 "MEDICAL BOARD OVERSIGHT OF MEDICAL EXPERT WITNESSES:  Establishes            
 guidelines for the court as to when to allow a medical expert                 
 witness to testify in cross-examination.                                      
                                                                               
 "Section 22, DEFINITIONS:  Provides definitions for professional              
 negligence and professional services.                                         
                                                                               
 "Section 23, CONTINGENT ATTORNEY FEE AGREEMENTS:  Provides that if            
 an attorney collects a contingency fee in connection with an award            
 of punitive damages, the contingent fee due the attorney shall be             
 calculated after that portion of punitive damages due the state has           
 been deducted from the total award of damages.                                
                                                                               
 Number 530                                                                    
                                                                               
 "Section 24, CIVIL LIABILITY OF HOSPITALS FOR NON EMPLOYEES:  The             
 purpose of this section is to clarify the circumstances in which              
 hospitals are held directly liable for the actions of health care             
 providers not employed by the hospital.  Current law permits                  
 claimants to sue only the hospital rather than the independent                
 contractor who may have less ability to pay.                                  
                                                                               
 "Provides that a hospital is not liable for civil damages resulting           
 from an act or omission by a health care provider who is not an               
 employee or actual agent of the hospital.  However, the hospital              
 must provide notice that the health care provider is an independent           
 contractor and a notice of limited liability must be posted in all            
 admissions areas and published in area newspapers annually.                   
                                                                               
 "The hospitals must also use caution and prudence in granting                 
 privileges to independent health care providers, have a review                
 proceeding to monitor independent contractors, and be prepared to             
 revoke or restrict privileges when needed.                                    
                                                                               
 "Hospitals are liable for civil damages if the hospital or its                
 employees were negligent or acted with intentional misconduct.                
                                                                               
 "The final section defines health care providers and hospitals as             
 the terms are used in this statute.                                           
                                                                               
 Number 610                                                                    
                                                                               
 "Section 25, DAMAGES RESULTING FROM COMMISSION OF A CRIME:                    
 Provides that a person committing, attempting to commit, or fleeing           
 from the commission of a felony whose action substantially                    
 contributed to the person's injury or death, is prohibited from               
 recovering damages from personal injury or death.                             
                                                                               
 "Section 26, SIGNING OF PLEADINGS, MOTIONS, AND OTHER PAPERS;                 
 SANCTIONS:  Sanctions for failure to sign a pleading or filing a              
 frivolous lawsuit is a matter in the discretion of the trial court.           
 This section imposes monetary sanctions against any attorney in               
 civil cases from filing frivolous, unnecessary and legally                    
 deficient pleadings.                                                          
                                                                               
 "If it is alleged or appears that a pleading, motion, or other                
 paper is signed in violation of this section, the court, upon                 
 motion or upon its own initiative, may set the matter for hearing.            
 If the court determines that the motion is in violation, monetary             
 sanctions will be implemented.                                                
                                                                               
 Number 640                                                                    
                                                                               
 "Section 27, Repealing AS 09.55.548.                                          
                                                                               
 "Section 28 through 33, Technical sections relating to amending               
 Alaska Rule of Civil Procedure 49.68.702 and 95.                              
                                                                               
                                                                               
 "Section 34,  Severability.                                                   
                                                                               
 "Section 35, This Act applies to all causes of action accruing on             
 or after the effective date of this Act.                                      
                                                                               
 "Section 36, This Act takes effect July 1, 1995."                             
                                                                               
 Number 650                                                                    
                                                                               
 CHAIRMAN PORTER stated the work session on HB 158 was over, and on            
 Wednesday, March 1, the bill would be open to public testimony.               
                                                                               
 ADJOURNMENT                                                                   
                                                                               
 The House Judiciary Committee adjourned at 3:05 p.m.                          
                                                                               

Document Name Date/Time Subjects