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