Legislature(1995 - 1996)

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

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