Legislature(1997 - 1998)

05/01/1997 01:07 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                HOUSE JUDICIARY STANDING COMMITTEE                             
                            May 1, 1997                                        
                             1:07 p.m.                                         
 MEMBERS PRESENT                                                               
 Representative Joe Green, Chairman                                            
 Representative Con Bunde, Vice Chairman                                       
 Representative Brian Porter                                                   
 Representative Norman Rokeberg                                                
 Representative Jeannette James                                                
 Representative Eric Croft                                                     
 Representative Ethan Berkowitz                                                
 MEMBERS ABSENT                                                                
 All members present                                                           
 COMMITTEE CALENDAR                                                            
 HOUSE BILL NO. 31                                                             
 "An Act relating to civil liability for certain false allegations             
 or material misstatements of fact in a civil pleading or                      
 proceeding, for certain improper acts relating to signing a civil             
 pleading, for certain improper acts relating to civil pleadings or            
 proceedings, for making an intentional false statement of a                   
 material fact, for acting on a civil claim or defense without                 
 probable cause, or for acting for a purpose other than proper                 
 adjudication of a civil claim; amending Rules 13(e) and 82(b),                
 Alaska Rules of Civil Procedure; and providing for an effective               
      - HEARD AND HELD                                                         
 CS FOR SENATE BILL NO. 39(JUD)                                                
 "An Act relating to hazardous chemicals, hazardous materials, and             
 hazardous waste."                                                             
      - MOVED HCS CSSB 39(JUD) OUT OF COMMITTEE                                
 CS FOR SENATE BILL NO. 3(JUD)                                                 
 "An Act authorizing prosecution and trial in the district court of            
 municipal curfew violations, and providing for punishment of minors           
 upon conviction for violation of a curfew ordinance."                         
      - HEARD AND HELD                                                         
 CS FOR SENATE BILL NO. 70(JUD)                                                
 "An Act relating to the discharge of firearms at or in the                    
 direction of buildings and dwellings."                                        
      - MOVED HCS CSSB 70(JUD) OUT OF COMMITTEE                                
 HOUSE BILL NO. 199                                                            
 "An Act relating to the property, transactions, and obligations of            
 spouses; relating to the augmented estate; amending Rule 301,                 
 Alaska Rules of Evidence; and providing for an effective date."               
      - SCHEDULED BUT NOT HEARD                                                
 (* First public hearing)                                                      
 PREVIOUS ACTION                                                               
 BILL:  HB 31                                                                  
 SPONSOR(S): REPRESENTATIVE(S) MULDER, Cowdery                                 
 JRN-DATE      JRN-PG                 ACTION                                   
 01/13/97        35    (H)   PREFILE RELEASED 1/3/97                           
 01/13/97        35    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/13/97        36    (H)   L&C, JUDICIARY, FINANCE                           
 02/03/97              (H)   L&C AT 3:15 PM CAPITOL 17                         
 02/03/97              (H)   MINUTE(L&C)                                       
 02/05/97              (H)   L&C AT 3:15 PM CAPITOL 17                         
 02/05/97              (H)   MINUTE(L&C)                                       
 02/05/97       238    (H)   L&C RPT  3DP 2NR                                  
 02/05/97       238    (H)   DP: SANDERS, RYAN, COWDERY                        
 02/05/97       239    (H)   NR: BRICE, HUDSON                                 
 02/05/97       239    (H)   2 FISCAL NOTES (LAW, COURT)                       
 02/05/97       239    (H)   REFERRED TO JUDICIARY                             
 02/05/97       252    (H)   COSPONSOR(S): COWDERY                             
 03/10/97              (H)   JUD AT 1:00 PM CAPITOL 120                        
 03/10/97              (H)   MINUTE(JUD)                                       
 03/19/97              (H)   JUD AT 1:00 PM CAPITOL 120                        
 03/19/97              (H)   MINUTE(JUD)                                       
 05/01/97              (H)   JUD AT 1:00 PM CAPITOL 120                        
 BILL:  SB 39                                                                  
 SPONSOR(S): SENATOR(S) LEMAN, Kelly, Taylor                                   
 JRN-DATE      JRN-PG                 ACTION                                   
 01/10/97        25    (S)   PREFILE RELEASED 1/10/97                          
 01/13/97        25    (S)   READ THE FIRST TIME - REFERRAL(S)                 
 01/13/97        25    (S)   RES, JUD, FIN                                     
 01/24/97       127    (S)   RES REFERRAL WAIVED                               
 02/03/97              (S)   JUD AT 1:30 PM BELTZ ROOM 211                     
 02/03/97              (S)   MINUTE(JUD)                                       
 02/05/97              (S)   MINUTE(JUD)                                       
 02/06/97       248    (S)   JUD RPT  CS  4DP 1NR      SAME TITLE              
 02/06/97       249    (S)   DP:  TAYLOR, PARNELL, MILLER, PEARCE              
 02/06/97       249    (S)   NR:  ELLIS                                        
 02/06/97       249    (S)   FN TO SB  (DPS)                                   
 02/06/97       249    (S)   ZERO FNS TO SB  (LAW, DOE, DEC)                   
 02/10/97       267    (S)   PREVIOUS FN APPLIES TO CS (DPS)                   
 02/10/97       267    (S)   PREVIOUS ZERO FN APPLIES TO CS (LAW)              
 02/13/97       334    (S)   PREVIOUS ZERO FN APPLIES TO CS (DOE)              
 02/17/97       379    (S)   ZERO FISCAL NOTE TO CS (DEC)                      
 02/13/97       339    (S)   FIN REFERRAL WAIVED                               
 02/18/97              (S)   RLS AT 11:15 AM FAHRENKAMP RM 203                 
 02/18/97              (S)   MINUTE(RLS)                                       
 02/19/97       412    (S)   RULES TO CALENDAR & 1NR     2/19/97               
 02/19/97       413    (S)   READ THE SECOND TIME                              
 02/19/97       413    (S)   JUD  CS ADOPTED UNAN CONSENT                      
 02/19/97       413    (S)   ADVANCED TO THIRD READING                         
                             UNAN CONSENT                                      
 02/19/97       413    (S)   READ THE THIRD TIME  CSSB 39(JUD)                 
 02/19/97       415    (S)   COSPONSOR(S):  KELLY                              
 02/19/97       414    (S)   PASSED Y19 N- E1                                  
 02/19/97       414    (S)   TAYLOR  NOTICE OF RECONSIDERATION                 
 02/20/97       431    (S)   RECON TAKEN UP - IN THIRD READING                 
 02/20/97       431    (S)   COSPONSOR(S): TAYLOR                              
 02/20/97       432    (S)   PASSED ON RECONSIDERATION Y17 N- E3               
 02/20/97       433    (S)   TRANSMITTED TO (H)                                
 02/21/97       414    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 02/21/97       415    (H)   JUDICIARY, FINANCE                                
 04/30/97              (H)   JUD AT 1:30 PM CAPITOL 120                        
 04/30/97              (H)   MINUTE(JUD)                                       
 05/01/97              (H)   JUD AT 1:00 PM CAPITOL 120                        
 BILL:  SB 3                                                                   
 SHORT TITLE: MINOR'S CURFEW VIOLATIONS                                        
 SPONSOR(S): SENATOR(S) PEARCE, Donley                                         
 JRN-DATE      JRN-PG                 ACTION                                   
 01/03/97        14    (S)   PREFILE RELEASED 1/3/97                           
 01/13/97        14    (S)   READ THE FIRST TIME - REFERRAL(S)                 
 01/13/97        14    (S)   HES,JUD                                           
 02/21/97              (S)   HES AT 9:00 AM BUTROVICH ROOM 205                 
 02/21/97              (S)   MINUTE(HES)                                       
 02/21/97       446    (S)   HES RPT  2DP 2NR 1AM                              
 02/21/97       446    (S)   DP:WILKEN,WARD;NR:ELLIS,GREEN;                    
 02/21/97       446    (S)   FISCAL NOTE (COURT)                               
 02/21/97       446    (S)   ZERO FN (DPS)                                     
 02/21/97       446    (S)   INDETERMINATE FNS (ADM, DHSS)                     
 02/21/97       446    (S)   FIN REFERRAL ADDED                                
                             FOLLOWING JUDICIARY                               
 03/07/97              (S)   JUD AT 1:30 PM BELTZ ROOM 211                     
 03/07/97              (S)   MINUTE(JUD)                                       
 03/10/97       652    (S)   JUD RPT  CS  3DP 1NR      NEW TITLE               
 03/10/97       652    (S)   DP: PEARCE, MILLER, PARNELL;                      
                             NR: ELLIS                                         
 03/14/97       739    (S)   PREVIOUS INDETERMINATE FN                         
                             APPLIES (DHSS)                                    
 03/21/97              (S)   FIN AT 9:00 AM SENATE FINANCE 532                 
 03/21/97              (S)   MINUTE(FIN)                                       
 03/21/97              (S)   MINUTE(FIN)                                       
 03/25/97              (S)   FIN AT 9:00 AM SENATE FINANCE 532                 
 03/25/97              (S)   MINUTE(FIN)                                       
 03/25/97              (S)   MINUTE(FIN)                                       
 03/25/97       850    (S)   FIN RPT  4DP 2NR   JUD CS                         
 03/25/97       850    (S)   DP: PEARCE, SHARP, PARNELL, TORGERSON             
 03/25/97       850    (S)   NR: PHILLIPS, ADAMS                               
 03/25/97       850    (S)   PREVIOUS FN (COURT)                               
 03/25/97       850    (S)   PREVIOUS INDETERMINATE FNS                        
                             (ADM, DHSS)                                       
 03/25/97       850    (S)   PREVIOUS ZERO FN (DPS)                            
 04/09/97              (S)   RLS AT 11:16 AM FAHRENKAMP RM 203                 
 04/14/97              (S)   RLS AT 10:45 AM FAHRENKAMP RM 203                 
 04/14/97              (S)   MINUTE(RLS)                                       
 04/15/97      1144    (S)   RULES TO CALENDAR  4/15/97                        
 04/15/97      1144    (S)   READ THE SECOND TIME                              
 04/15/97      1145    (S)   JUD  CS ADOPTED UNAN CONSENT                      
 04/15/97      1145    (S)   ADVANCED TO THIRD READING                         
                             UNAN CONSENT                                      
 04/15/97      1145    (S)   READ THE THIRD TIME  CSSB 3(JUD)                  
 04/15/97      1145    (S)   PASSED Y15 N2 E3                                  
 04/15/97      1145    (S)   DUNCAN  NOTICE OF RECONSIDERATION                 
 04/16/97      1227    (S)   RECONSIDERATION NOT TAKEN UP                      
 04/16/97      1228    (S)   TRANSMITTED TO (H)                                
 04/17/97      1131    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 04/17/97      1131    (H)   JUDICIARY                                         
 04/25/97              (H)   JUD AT 1:00 PM CAPITOL 120                        
 04/25/97              (H)   MINUTE(JUD)                                       
 05/01/97              (H)   JUD AT 1:00 PM CAPITOL 120                        
 BILL:  SB 70                                                                  
 SHORT TITLE: DISCHARGE OF FIREARMS AT BLDGS.                                  
 SPONSOR(S): SENATOR(S) DONLEY, Pearce, Leman, Green, Wilken,                  
 Mackie, Phillips, Ellis, Ward, Duncan, Kelly                                  
 JRN-DATE      JRN-PG                 ACTION                                   
 01/30/97       176    (S)   READ THE FIRST TIME - REFERRAL(S)                 
 01/30/97       176    (S)   HES, JUD, FIN                                     
 02/17/97              (S)   HES AT 9:00 AM BUTROVICH ROOM 205                 
 02/17/97              (S)   MINUTE(HES)                                       
 02/21/97              (S)   HES AT 9:00 AM BUTROVICH ROOM 205                 
 02/21/97              (S)   MINUTE(HES)                                       
 02/21/97       448    (S)   HES RPT  3DP 1NR                                  
 02/21/97       448    (S)   DP: WILKEN, LEMAN, WARD  NR: ELLIS                
 02/21/97       448    (S)   FISCAL NOTE (CORR)                                
 02/21/97       448    (S)   INDETERMINATE FNS (ADM, COURT)                    
 02/21/97       448    (S)   ZERO FNS (LAW, DPS, HES)                          
 03/24/97              (S)   JUD AT 1:30 PM BELTZ ROOM 211                     
 03/24/97              (S)   MINUTE(JUD)                                       
 03/26/97              (S)   MINUTE(JUD)                                       
 04/01/97       915    (S)   JUD RPT  CS  3DP          NEW TITLE               
 04/01/97       915    (S)   DP:  TAYLOR, MILLER, PEARCE                       
 04/09/97              (S)   FIN AT 6:00 PM SENATE FINANCE 532                 
 04/09/97              (S)   MINUTE(FIN)                                       
 04/09/97              (S)   MINUTE(FIN)                                       
 04/09/97      1049    (S)   FISCAL NOTE TO CS (LAW)                           
 04/10/97      1076    (S)   FIN RPT (JUD)CS  6DP 1NR                          
 04/10/97      1076    (S)   DP: SHARP, PEARCE, PHILLIPS, PARNELL              
 04/10/97      1076    (S)   DP: TORGERSON, DONLEY; NR: ADAMS                  
 04/10/97      1076    (S)   FN TO CS (ADM-PD)                                 
 04/10/97      1076    (S)   PREVIOUS FN (LAW)                                 
 04/10/97      1076    (S)   ZERO FNS TO CS (CORR, COURT, ADM-PA)              
 04/10/97      1076    (S)   PREVIOUS ZERO FNS (DPS, DHSS)                     
 04/11/97              (S)   RLS AT 10:45 AM FAHRENKAMP RM 203                 
 04/11/97              (S)   MINUTE(RLS)                                       
 04/14/97      1126    (S)   RULES TO CALENDAR  4/14/97                        
 04/14/97      1130    (S)   READ THE SECOND TIME                              
 04/14/97      1130    (S)   JUD  CS ADOPTED UNAN CONSENT                      
 04/14/97      1130    (S)   ADVANCED TO THIRD READING                         
                             UNAN CONSENT                                      
 04/14/97      1130    (S)   READ THE THIRD TIME  CSSB 70(JUD)                 
 04/14/97      1130    (S)   PASSED Y17 N- E3                                  
 04/14/97      1130    (S)   COSPONSOR(S): PEARCE, LEMAN, GREEN,               
 04/14/97      1130    (S)   WILKEN, MACKIE, PHILLIPS, ELLIS,                  
 04/14/97      1130    (S)   WARD, DUNCAN, KELLY                               
 04/14/97      1133    (S)   TRANSMITTED TO (H)                                
 04/16/97      1110    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 04/16/97      1110    (H)   JUDICIARY, FINANCE                                
 04/29/97              (H)   JUD AT 1:00 PM CAPITOL 120                        
 04/29/97              (H)   MINUTE(JUD)                                       
 05/01/97              (H)   JUD AT 1:00 PM CAPITOL 120                        
 WITNESS REGISTER                                                              
 CHARLES E. COLE, Attorney at Law                                              
 406 Cushman Street, Suite 2                                                   
 Fairbanks, Alaska  99701                                                      
 Telephone:  (907) 452-1124                                                    
 POSITION STATEMENT:  Testified in opposition to HB 31.                        
 ANNETTE KREITZER, Legislative Assistant                                       
    to Senator Loren Leman                                                     
 Alaska State Legislature                                                      
 Capitol Building, Room 113                                                    
 Juneau, Alaska  99801                                                         
 Telephone:  (907) 465-2095                                                    
 POSITION STATEMENT:  Presented sponsor statement for SB 39.                   
 RITA VENTA, Administrator                                                     
 Community Right-to-Know Program                                               
 Anchorage Fire Department                                                     
 1301 East 80th Avenue                                                         
 Anchorage, Alaska  99518                                                      
 Telephone:  (907) 267-4924                                                    
 POSITION STATEMENT:  Testified regarding SB 39.                               
 CRAIG GOODRICH, Director/State Fire Marshal                                   
 Division of Fire Prevention                                                   
 Department of Public Safety                                                   
 5700 East Tudor Road                                                          
 Anchorage, Alaska  99507-1225                                                 
 Telephone:  (907) 269-5491                                                    
 POSITION STATEMENT:  Provided department's position and answered              
                      questions regarding SB 39.                               
 MARIE SANSONE, Assistant Attorney General                                     
 Natural Resources Section                                                     
 Civil Division (Juneau)                                                       
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, Alaska  99811-0300                                                    
 Telephone:  (907) 465-3600                                                    
 POSITION STATEMENT:  Answered questions regarding SB 39.                      
 LARRY DIETRICK, Program Manager                                               
 Prevention and Emergency Response Program                                     
 Division of Spill Prevention and Response                                     
 Department of Environmental Conservation                                      
 410 Willoughby Avenue, Suite 105                                              
 Juneau, Alaska  99801-1795                                                    
 Telephone:  (907) 465-5275                                                    
 POSITION STATEMENT:  Provided department's position and answered              
                      questions regarding SB 39.                               
 PAMELA LaBOLLE, President                                                     
 Alaska State Chamber of Commerce                                              
 217 2nd Street, Suite 201                                                     
 Juneau, Alaska  99801                                                         
 Telephone:  (907) 586-2323                                                    
 POSITION STATEMENT:  Testified regarding SB 39.                               
 MYRNA MAYNARD, Legislative Administrative Assistant                           
    to Senator Drue Pearce                                                     
 Alaska State Legislature                                                      
 Capitol Building, Room 518                                                    
 Juneau, Alaska  99801                                                         
 Telephone:  (907) 465-4747                                                    
 POSITION STATEMENT:  Presented sponsor statement for SB 3.                    
 ANNE CARPENETI, Assistant Attorney General                                    
 Legal Services Section                                                        
 Criminal Division                                                             
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, Alaska  99811-0300                                                    
 Telephone:  (907) 465-3428                                                    
 POSITION STATEMENT:  Provided department's position and answered              
                      questions regarding SB 3 and SB 70.                      
 JACK CHENOWETH, Attorney                                                      
 Legislative Legal and Research Services                                       
 Legislative Affairs Agency                                                    
 130 Seward Street, Suite 409                                                  
 Juneau, Alaska  99801-2105                                                    
 Telephone:  (907) 465-2450                                                    
 POSITION STATEMENT:  Answered questions regarding SB 3.                       
 MARGOT KNUTH, Assistant Attorney General                                      
 Criminal Division                                                             
 Department of Law                                                             
 240 Main Street, Suite 700                                                    
 Juneau, Alaska  99801                                                         
 Telephone:  (907) 465-4652                                                    
 POSITION STATEMENT:  Testified regarding SB 3 on behalf of the                
                      Governor's Children's Cabinet.                           
 JAMES ARMSTRONG, Legislative Assistant                                        
    to Senator Dave Donley                                                     
 Alaska State Legislature                                                      
 Capitol Building, Room 508                                                    
 Juneau, Alaska  99801                                                         
 Telephone:  (907) 465-3892                                                    
 POSITION STATEMENT:  Presented sponsor statement for SB 70.                   
 ACTION NARRATIVE                                                              
 TAPE 97-74, SIDE A                                                            
 Number 0001                                                                   
 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee              
 meeting to order at 1:07 p.m.  Members present at the call to order           
 were Representatives Green, Bunde, Porter and Rokeberg.                       
 Representative James arrived at 1:09 p.m., and Representatives                
 Croft and Berkowitz arrived at 1:12 p.m.                                      
 HB 31 - CIVIL LIABILITY FOR IMPROPER LITIGATION                               
 CHAIRMAN GREEN announced the first item of business was House Bill            
 No. 31, "An Act relating to civil liability for certain false                 
 allegations or material misstatements of fact in a civil pleading             
 or proceeding, for certain improper acts relating to signing a                
 civil pleading, for certain improper acts relating to civil                   
 pleadings or proceedings, for making an intentional false statement           
 of a material fact, for acting on a civil claim or defense without            
 probable cause, or for acting for a purpose other than proper                 
 adjudication of a civil claim; amending Rules 13(e) and 82(b),                
 Alaska Rules of Civil Procedure; and providing for an effective               
 CHAIRMAN GREEN informed members that Mr. Cole would discuss his               
 concerns.  Other than that, however, HB 31 would be addressed in              
 the scheduled order, following SB 39, SB 3 and SB 70.                         
 Number 0107                                                                   
 CHARLES E. COLE, Attorney at Law, testified via teleconference from           
 Fairbanks, saying he objects to essentially every provision in the            
 committee substitute for HB 31 (he did not specify which version he           
 was addressing, but 0-LS0193\H, Ford, 4/29/97 was the most recent).           
 MR. COLE referred to subsection (1), which says a person may not              
 sign a civil complaint or other civil pleading that contains false            
 allegations that are material to the claims asserted in the civil             
 action with the intention of asserting allegations that are false.            
 He stated his belief that this will wreak havoc with the judicial             
 system, and he cited an example.  An attorney signs a complaint               
 alleging the defendant was negligent because he operated a motor              
 vehicle in violation of the traffic laws.  In the course of                   
 litigation, it turns out that the allegation was false.  Obviously,           
 the allegation of negligence is material.  At the conclusion of the           
 case, the prevailing party, in this case the defendant, has the               
 right under subsection (c) to bring an action against the                     
 plaintiff's attorney for compensatory and punitive damages.                   
 Number 0266                                                                   
 MR. COLE said most assuredly, those claims will be made.  The issue           
 will then turn on whether the party signing the complaint did so              
 with the intention of asserting false allegations.  Mr. Cole                  
 believes it is subjective and will breed litigation.  The                     
 prevailing party may easily make the claim against the attorney who           
 signed the complaint, who will likely respond that he had a                   
 reasonable belief.  The issue will be submitted to a jury, and who            
 knows what the jury may find?                                                 
 MR. COLE said furthermore, before an attorney signs a complaint,              
 this provision requires all sorts of protective measures against              
 possible liability, which will run up the cost of litigation                  
 astronomically for both sides.  For example, in the course of daily           
 litigation, defendants sign pleadings which assert that plaintiffs            
 failed to state a claim upon which relief may be granted or that              
 plaintiffs are estopped to make this claim.  Hundreds of pleadings            
 are filed every day in Alaska.  Subjecting attorneys to this risk             
 of compensatory damages, for presumably the entire cost of the                
 defense of the lawsuit, as well as for punitive damages, takes                
 litigation in Alaska in the wrong direction.                                  
 MR. COLE referred to subsection (2), which says a person may not              
 "sign a civil pleading before making reasonable inquiry".  He said            
 that was a provision amended in the federal civil rules in 1983;              
 the amendment provided that in the event of breach of a rule                  
 similar to this, the court shall enter sanctions against the party            
 signing the complaint who violated the rule.  Mr. Cole said that              
 amendment was objected to by federal judges in the trial courts,              
 judges in the courts of appeal, lawyers and law professors.                   
 MR. COLE said he had given Representative Cowdery 50 to 100 pages             
 of law review articles pointing out problems which the federal                
 courts had with a similar rule; After three or four years,                    
 objections had begun to be raised to that amendment, and in 1993              
 the rule was drastically revised.  Whereas that rule only provided            
 for sanctions against the offending party, this bill provides under           
 subsection (c)(2) that compensatory damages may be sought against             
 the party who signed the pleading.  Mr. Cole believes if this is              
 enacted, virtually every prevailing party will assert damages                 
 against the losing party, breeding more litigation.  Attorneys will           
 fight "like you cannot believe."  Bills for those fights will be              
 paid by clients, increasing exponentially the costs of litigation.            
 MR. COLE referred to subsection (2)(b), which provides that if the            
 jury, for example, finds that a party to a civil action has                   
 knowingly made a false statement of a material fact, the court                
 shall enter judgment against the party making the false statement             
 on the issue to which the false statement relates.                            
 Number 0630                                                                   
 MR. COLE said there is no definition of a material fact.  He had              
 been involved recently in litigation where many of the 500                    
 "material facts" were represented by documents.  In the course of             
 discovery, witnesses are asked about events for which their memory            
 may have faded but for which documents bearing their signatures may           
 exist, refuting the recollection.  The question for material facts            
 is whether a deponent or party who testified made a false statement           
 knowingly or erroneously.                                                     
 MR. COLE said the party in whose favor this bill acts will always             
 claim a statement was knowingly false.  Rather than the driving               
 event being who should prevail under the pleadings of the                     
 allegations of the complaint and the defense, it would turn into a            
 fight about who knowingly made a false statement.  The easy way for           
 a party to win the lawsuit would be to prove that one of 500                  
 material fact statements was knowingly made false.  This would                
 snarl litigation and collateral issues no end, which happened when            
 the federal rule was amended in 1983.  For the foregoing reasons,             
 Mr. Cole urged that the bill not be passed out of committee.                  
 Number 0786                                                                   
 CHAIRMAN GREEN advised members that they could ask questions, as              
 Mr. Cole would not be available later, but there would be no                  
 debate.  He noted that there were additional testifiers.  He said             
 there had been a significant amount of work in trying to come up              
 with this committee substitute.  He asked Mr. Cole about his                  
 testimony that in other areas where a similar law was enacted,                
 there was significant litigation between attorneys.                           
 MR. COLE explained that the federal district courts found that the            
 collateral issues were essentially corrupting the central issues in           
 the litigation.  Well-documented, it got so bad that the federal              
 courts substantially amended that rule in 1993.  That federal rule            
 was much softer than this proposed legislation.  Mr. Cole felt                
 confident that were this enacted, the same would result.                      
 CHAIRMAN GREEN asked whether there was a way to ameliorate this, to           
 help reduce litigation rather than create more.                               
 MR. COLE responded that there is a similar rule, Civil Rule 11 of             
 the Alaska Rules of Civil Procedure, patterned on federal rule 11.            
 The Alaska Supreme Court had considered adopting the 1983 amendment           
 to the federal rules of civil procedure but wisely did not do so.             
 Mr. Cole believes that the existing rule works well and that trial            
 judges would agree.  To him, the worst thing that can happen in               
 litigation is when lawyers sue each other and make financial claims           
 for sanctions and compensatory damages, let alone punitive damages.           
 He concluded that more civility among lawyers should be brought to            
 the litigation process, not less.                                             
 Number 0970                                                                   
 REPRESENTATIVE JEANNETTE JAMES asked whether Mr. Cole was saying              
 that he did not believe frivolous lawsuits are currently a problem.           
 MR. COLE replied that when they took testimony in the Governor's              
 tort reform committee, they did not hear from trial judges that               
 they were faced with a substantial number of frivolous lawsuits,              
 despite questioning them at length about it.  Mr. Cole believes               
 there are plenty of weapons in the civil rules now for trial judges           
 to deal with lawsuits which they think are frivolous.  For example,           
 they could award full attorney fees or strike pleadings.                      
 Number 1035                                                                   
 REPRESENTATIVE JAMES asked:  What about the idea that the judges              
 don't see this because of frivolous lawsuits settled out of court?            
 MR. COLE replied that the judges see all of those pleadings.  His             
 position is that parties have the right to settle and pay money for           
 frivolous lawsuits; however, he does not advise doing so.  He does            
 not believe that many parties, let alone insurance companies, are             
 "paying the ransom."  He concluded, "If they are, we shouldn't be             
 passing litigation ... to help their improvident judgments."                  
 Number 1079                                                                   
 REPRESENTATIVE ERIC CROFT said part (a) seems to put in statute               
 what is already in Civil Rule 11, except that in the bill, one sues           
 in a whole new action afterwards.  In contrast, under Civil Rule              
 11, the claim that an action was frivolous would be made before the           
 judge most familiar with the lawsuit and evidence.  Representative            
 Croft asked whether the main change in the bill would be throwing             
 that into a new proceeding, with compensatory and punitive damages.           
 MR. COLE answered that it gives rise to an entire set of claims.              
 Under (c)(2), the offending party may be sued for compensatory and            
 punitive damages.  As he recalled the federal rule, there is a                
 provision whereby if the receiving party to the complaint doesn't             
 like it or feels there are claims that are frivolous or made                  
 without a basis, they give the other party a notice to that effect.           
 This provides an opportunity to correct a potential offense without           
 raising what Mr. Cole believes is a terrible possibility of being             
 sued for compensatory and punitive damages.                                   
 Number 1206                                                                   
 REPRESENTATIVE CON BUNDE said as a layman, he perhaps didn't have             
 a correct perception of frivolous lawsuits; nevertheless, it was a            
 concern of his and one reason that he had supported tort reform.              
 He asked whether Mr. Cole believed the tort reform legislation                
 recently passed would reduce the amount of frivolous litigation,              
 thereby removing some of the concerns addressed by this bill.                 
 MR. COLE answered, "I think so."  He hadn't seen the final version            
 of that bill but recalled that there was a provision that a party             
 could be sanctioned up to $10,000 for filing a frivolous lawsuit.             
 REPRESENTATIVE BRIAN PORTER said that amount was $50,000.                     
 MR. COLE said at the least, the bill needs more study.  It is "far            
 too draconian" and will disrupt a system of litigation which he               
 believes, by and large, is working pretty well.                               
 CHAIRMAN GREEN noted the period of silence after the final remark.            
 He thanked Mr. Cole and concluded that portion of the hearing.  (HB
 31 was not heard again that day.)                                             
 CHAIRMAN GREEN announced the next item of business was CS for                 
 Senate Bill No. 39(JUD), "An Act relating to hazardous chemicals,             
 hazardous materials, and hazardous waste."                                    
 Number 1350                                                                   
 ANNETTE KREITZER, Legislative Assistant to Senator Loren Leman,               
 came forward to present the bill on behalf of the sponsor.  She               
 stated her intention of going through the bill and then addressing            
 the question of compressed gasses, which she believed to be the               
 only pressing issue with this legislation.  She advised members               
 that this bill is similar to SB 69 of the previous year.                      
 MS. KREITZER said Section 1 "speaks to the immunity to Title 9,"              
 protecting the state from strict liability for oil spills or other            
 environmental releases at Rural Education Attendance Area (REAA)              
 schools.  Someone from the Department of Law was present to address           
 sections relating to the liability issue.                                     
 MS. KREITZER explained that Sections 2, 3, 7 and 15 delete                    
 reference to the state fire marshal's placarding program.  There              
 are many reporting programs.  For example, if the federal                     
 Occupational Safety and Health Administration (OSHA) requires a               
 material safety data sheet (MSDA), the reporting facility must fill           
 out a Tier II form.  There are also requirements under the                    
 Emergency Planning and Community Right-to-Know Act (EPCRA); the               
 Comprehensive Environmental Response, Compensation and Liability              
 Act of 1980 (CERCLA); the state fire marshal's program under Title            
 18; and the Title 29 reporting program.  For the latter two,                  
 different substances have different reporting thresholds.                     
 MS. KREITZER reported that they had been working on this for three            
 years, and she had worked with several fire departments:                      
 Anchorage, Mat-Su, Kenai, Kodiak.  She had also worked with the               
 Department of Environmental Conservation (DEC) and the Department             
 of Military and Veterans Affairs (DMVA) to figure out a way to have           
 one form for all reporting of hazardous substances.  This has meant           
 some give and take.  The Senate had made it clear that they would             
 like to require no more than the federal government requires.  Ms.            
 Kreitzer noted that there was a proposed committee substitute.                
 Number 1463                                                                   
 REPRESENTATIVE BUNDE made a motion to adopt 0-LS0214\F, Lauterbach,           
 4/11/97 as a work draft.  There being no objection, that version              
 was before the committee.                                                     
 MS. KREITZER referred to page 4, beginning at line 28, through page           
 5, line 19, which lists the requirements under federal law.  In her           
 most recent conversation with the sponsor and others involved with            
 this bill, "that's what they would like to stay at."  She said the            
 concern today is that the Anchorage Fire Department would like to             
 keep compressed gasses as a reporting requirement.  They had                  
 discussed this at great length, and Ms. Kreitzer had spoken with              
 the chief; they now agree to disagree.  She had also spoken with              
 the Alaska Fire Chiefs Association, which doesn't necessarily agree           
 with the Anchorage Fire Department that compressed gasses need to             
 be in there, because that would put them back on the road of adding           
 substances not included on the federal list, and others may want to           
 add substances in the future.                                                 
 MS. KREITZER pointed out that one can go to the State Emergency               
 Response Commission (SERC) and request that compressed gasses be              
 put on the list statewide, so that the statewide form would include           
 them and everybody would report them.  She said that is the way to            
 go, rather than amending the bill to include compressed gasses when           
 that is not a federal reporting requirement.                                  
 MS. KREITZER brought to members' attention a couple of other                  
 changes since the previous year's bill.  The DEC has received the             
 Tier II reports ever since the SERC was established.  In informal             
 discussions with the sponsor's office, the DEC has indicated they             
 do not believe they should have to do that anymore.  However, the             
 sponsor believes it is entirely appropriate that the DEC receive              
 the Tier II reports on behalf of the state.  Therefore, Section 6             
 specifies that the DEC will receive the Tier II reports on behalf             
 of the SERC.  Ms. Kreitzer noted that it is a federal requirement             
 that the Tier II reports be filed with the SERC.                              
 MS. KREITZER said throughout the bill, there are deletions of the             
 fire marshal's placarding program, a Title 18 program under which             
 only 15 buildings have been placarded since 1986.  The program has            
 not been funded.  The state fire marshal or someone from his office           
 has testified "through February of this year" that they are in                
 favor of having the program deleted; it is not effective for them,            
 nor has it been.  Ms. Kreitzer advised members that the Title 29              
 program stays, at the request of the Municipality of Anchorage;               
 that is the only municipality now reporting hazardous substances              
 and then putting placards on buildings under Title 29.                        
 Number 1688                                                                   
 CHAIRMAN GREEN understood their not wanting to include compressed             
 gasses because those are not on the federal list and they are                 
 fearful that in the future, others will be added.  He asked:  Isn't           
 it a fact that compressed gasses pose a risk to firefighters?                 
 MS. KREITZER said that has been part of the testimony and is                  
 certainly the position of the Anchorage fire chief, who had a                 
 personal experience with a compressed gas exploding.  However,                
 there are three or four definitions of compressed gas, making it              
 difficult to amend a bill like this and put "compressed gasses"               
 back in.  "And we decided that it's not something that we wanted to           
 amend the bill with," she said.  They had talked to other fire                
 chiefs and fire departments, which had not expressed as great a               
 concern as the Anchorage Fire Department had.  That morning, she              
 had spoken with Tim Biggane, president of the Alaska Fire Chiefs              
 Association, and they are not necessarily in favor of putting                 
 compressed gasses back on the list; neither is the University of              
 Alaska Fairbanks.                                                             
 Number 1747                                                                   
 CHAIRMAN GREEN, noting Ms. Kreitzer's testimony that the DEC would            
 be the repository for the reports, asked who the emergency response           
 team is and whether it is the DMVA.                                           
 MS. KREITZER replied that it is co-chaired by the DMVA and the DEC.           
 While SB 33, a bill that passed a couple of years ago, put primary            
 responsibility for the SERC under the DMVA, it is co-chaired by               
 both departments.  She believes there are seven public members and            
 nine state departments represented on the SERC.  The Tier II                  
 reports must go somewhere, and because the DEC is the hazardous               
 substance "spill responder" for the state, it makes sense that the            
 Tier II reports go to them, for their use.                                    
 CHAIRMAN GREEN asked whether Ms. Kreitzer knew the DEC's objection.           
 MS. KREITZER said no.                                                         
 Number 1804                                                                   
 REPRESENTATIVE CROFT referred to Section 1, excluding the state or            
 REAAs from strict liability for releasing toxic substances.  He               
 asked whether other entities are strictly liable for that.                    
 MS. KREITZER deferred to the Department of Law for an answer.                 
 REPRESENTATIVE CROFT requested the rationale for deleting the                 
 placarding program, noting that there was a letter from the                   
 Interior Fire Chiefs Association of Alaska objecting to that.                 
 MS. KREITZER replied, "Our rationale for doing it is three years of           
 working with fire departments and ... the state fire marshal's                
 office, and the state fire marshal's agreeing to the fact that we             
 need to delete the program because it has never been funded. ...              
 When you count the years from '86 to now, 15 buildings being                  
 placarded is not a very effective program."                                   
 CHAIRMAN GREEN asked whether the reason, then, was because it was             
 never funded.                                                                 
 MS. KREITZER answered that it was never funded and they just don't            
 have the ability to placard every building in the state outside the           
 Municipality of Anchorage, which is what their responsibility would           
 be, or is currently, under law.                                               
 Number 1870                                                                   
 REPRESENTATIVE ETHAN BERKOWITZ requested clarification about page             
 4, saying it seemed that beginning on line 4, a municipality can't            
 add chemicals, but on line 18 and 19, a municipality can remove               
 chemicals from the lists.                                                     
 MS. KREITZER explained that they can do both but must go through a            
 public process.  They have to use the form.  She explained that the           
 form which the Municipality of Anchorage is using under the Title             
 29 program is "very close if not the form that's going to be                  
 approved, because we've worked on this for the last three years,              
 and they know it's coming, and they agree with many of the changes            
 other than the compressed gas."  She said they can go to the SERC             
 and either add or delete substances.                                          
 MS. KREITZER said maybe it is unclear because of the way the bill             
 is written.  For those sections, beginning on line 9, when she had            
 asked the drafter whether it was clear that they will use a Tier II           
 form, the reply had been, "Well, we've not put anything in here               
 that prohibits them from using another form."  Ms. Kreitzer stated,           
 "And so, that's what this says. ... They can't use a form other               
 than the one required under here.  They can't require someone to              
 report unless they're required to report by the State Emergency               
 Response Commission, which means federal law.  And they can't                 
 require reporting of a substance that's not under this, unless it's           
 added by the commission, under (c)."                                          
 Number 1945                                                                   
 REPRESENTATIVE BERKOWITZ agreed there was some confusion in the               
 drafting.  The way he read it, a municipality can remove substances           
 separately from the SERC, but it requires prior approval by the               
 SERC before adding any.  He expressed concern that the state may be           
 superimposing its will on municipalities, precluding a municipality           
 from exercising its own judgment as to what chemicals, materials              
 and wastes should or should not come within its reach.                        
 MS. KREITZER said that was exactly an issue they debated in talking           
 to fire departments in Kenai, Kodiak, Mat-Su and Anchorage.  The              
 bigger problem has been that this system does not work and the fire           
 departments cannot even handle the information coming in to them.             
 Ms. Kreitzer stated, "ARCO Houston sends a packet this thick to the           
 Anchorage Fire Department, listing every can of WD-40 because of              
 all of the different reporting requirements that are here."  She              
 restated that this has been a bill of give and take, saying they              
 must get to some compromise, to make it a workable program so that            
 fire departments can at least use the information.                            
 Number 2005                                                                   
 REPRESENTATIVE BERKOWITZ said it seemed that if Anchorage or Kenai            
 didn't want all that information about each can of WD-40, they                
 could, independently from the state, say so.                                  
 MS. KREITZER replied that she had been in meetings for three years            
 and had talked to ARCO and the fire departments; it was not that              
 easy.  She stated, "They have their system set up for reporting,              
 their computer systems, and they're trying to do it in the most               
 cost-efficient manner possible. ... That's what has brought us to             
 the place where we are now, and that's why the bill is written the            
 way that it is, to help satisfy everybody's needs."                           
 REPRESENTATIVE BERKOWITZ asked whether the bill was being driven by           
 concerns of ARCO and other companies, rather than municipalities.             
 MS. KREITZER said no, their main concern has been that fire                   
 departments be able to use the information for the purpose that it            
 was intended, for good response and to protect firefighters.                  
 Number 2059                                                                   
 REPRESENTATIVE CROFT asked whether they were deleting the                     
 placarding program because it does not make sense, because it is              
 not cost-effective, or because it is a good program that is not               
 being funded.                                                                 
 MS. KREITZER replied, "People may argue whether it's a good program           
 or not.  The firefighters and the fire chiefs that I've talked to             
 have found it to be ineffective."                                             
 REPRESENTATIVE CROFT asked, "Ineffective because the placards                 
 aren't there, because we don't give them the money to do it?  Or              
 ineffective because when the placards are, it doesn't help them               
 that much?"                                                                   
 MS. KREITZER replied, "I think probably for a multitude of                    
 Number 2120                                                                   
 RITA VENTA, Administrator, Community Right-to-Know (CRTK) Program,            
 Anchorage Fire Department, testified via teleconference, speaking             
 on behalf of Inspector Foster, who was unavailable; they had been             
 asked by Fire Chief Mike Nolan to express their department's                  
 concerns regarding this change on the compressed gas issue.                   
 MS. VENTA referred to page 5, lines 18 and 19, indicating it                  
 related to AS 29.35.500, section (c)(7), and changed the reportable           
 quantities of compressed gasses from 200 cubic feet to 10,000                 
 pounds.  For Anchorage, a change like that would create two major             
 safety issues:  Compressed gasses, even in small quantities, can be           
 lethal, especially to firefighters; and identifying a gas and its             
 particular risk may not be feasible until the middle of an                    
 emergency.  Prior knowledge through proper reporting is the only              
 reasonable approach.                                                          
 MS. VENTA stated, "We acknowledge that within the Anchorage fire              
 service area, our CRTK Program retains enforcement of the                     
 compressed gasses, as presently written.  However, not all of the             
 municipality is encompassed by the Anchorage fire service area.               
 Eagle River, Chugiak and Girdwood are covered by our emergency                
 responders but excluded from municipal code enforcement.  And this            
 is a disparity, then, between two reportable quantities for                   
 compressed gasses, which would increase the hazards to our                    
 personnel and the public."                                                    
 MS. VENTA said second, strict conformance to federal regulations              
 may not always be best for Alaska, given the distances in outlying            
 areas between settlements, the availability of an emergency                   
 responder network and severe weather.  A typical remote Western               
 Alaska village may be centered around a fish processing industry,             
 for example, that uses (indisc.), ammonia and chlorine in                     
 quantities that are relatively large but well below the proposed              
 10,000-pound reporting limit.                                                 
 MS. VENTA said rural communities depend on these regulations to               
 address emergency planning; with the proposed changes, regulations            
 would offer no relevant guidance.  Failure to assess and report               
 compressed gasses could lead to disaster for citizens with rural              
 fire departments, many of which operate with minimal resources.               
 The Anchorage Fire Department urges the committee to amend the                
 draft and retain the "200 cubic feet" language.                               
 MS. VENTA commended the bill's authors for permitting amendments              
 that try to streamline reporting for industry while improving                 
 safety for responders, workers and the public.  She advised members           
 that Anchorage's program had operated since 1986.  Hundreds of                
 buildings are placarded there, and the program works for them.  As            
 for trying to have a unified form, she said, "We don't have a                 
 problem with that.  But we have our own program set up.  We'd like            
 to continue operating it that way."                                           
 Number 2272                                                                   
 CHAIRMAN GREEN referred to the expressed concern that deviating               
 from the federal list may result in a variety of things that are              
 not really necessary or a mixed bag.  He asked:  "Do you feel that            
 the restrictions that are on page 6, I believe, the requirements to           
 add or subtract, would be adequate if, in fact, gasses were re-               
 added, as an addition to the federal requirements, but still would            
 not open the door to just a plethora of things being added back               
 MS. VENTA replied, "I think we're okay ... with that premise.  We             
 just feel that the gas issue is an important issue for our first              
 responders.  Most of the other substances, as listed here, are                
 pretty much in coordination with what we require."                            
 Number 2317                                                                   
 REPRESENTATIVE PORTER asked what size of canister was being                   
 eliminated by deleting compressed gas equal to 200 cubic feet.                
 MS. VENTA replied, "Generally, 150-pound cylinders; those are the             
 big ones."                                                                    
 REPRESENTATIVE PORTER asked, "Notwithstanding the fire service                
 district, currently you're placarding the entire city because of              
 Title 29?"                                                                    
 MS. VENTA answered, "Yes, that's correct.  Within certain                     
 quantities, if they have what we consider hazardous materials, we             
 placard their building. ... And the first responders find the                 
 placarding very helpful here."                                                
 REPRESENTATIVE PORTER asked whether the assembly would be                     
 precluded, because of the service district boundaries, from passing           
 an areawide ordinance covering this or any other provision.                   
 MS. VENTA requested clarification.                                            
 REPRESENTATIVE PORTER said he understood there was an inability               
 because of the fire service districts there to have a uniform                 
 zoning regulation throughout the entire city; consequently, they              
 must rely on Title 29, which is a statewide program.  He asked,               
 "Are you precluded from having an ordinance that would, in effect,            
 replicate your abilities in Title 29?"                                        
 MS. VENTA said she would have to check on that.                               
 Number 2391                                                                   
 REPRESENTATIVE BERKOWITZ asked, "Do you often respond, or do you              
 ever respond, outside the district?"                                          
 MS. VENTA replied, "We certainly do.  We've got a station in Eagle            
 River, and we are second-in on Chugiak.  And we also have a monitor           
 station in Girdwood, but we do respond there."                                
 REPRESENTATIVE BERKOWITZ said his concern would be that the                   
 placarding would have to occur wherever they might respond.                   
 MS. VENTA said that is correct.                                               
 Number 2419                                                                   
 CRAIG GOODRICH, Director/State Fire Marshal, Division of Fire                 
 Prevention, Department of Public Safety, testified via                        
 teleconference from Anchorage, saying the position of the office of           
 the state fire marshal had been adequately articulated and he would           
 answer questions.                                                             
 Number 2437                                                                   
 REPRESENTATIVE PORTER asked whether the municipality could initiate           
 an areawide ordinance to address needs being excluded at this                 
 MR. GOODRICH stated his understanding that the municipality is                
 looking toward taking a complete deferral with respect to building            
 and life-safety codes for the entire municipality.  He commented,             
 "That will take a similar ballot, however, just to pass it on the             
 `hillside,' with law enforcement taking over that section.  So, how           
 that will be received is up in the air."                                      
 MR. GOODRICH continued, "But the short answer to your question is             
 I don't believe that that is possible for the same reasons that the           
 law enforcement issue took place on the `hillside'; extending fire            
 service out to the full edges of the municipality seems to be                 
 problematic.  However, I would think that that would probably be              
 something as well addressed in the legal department.  So, I can't             
 answer that question directly, but that's my opinion."                        
 TAPE 97-74, SIDE B                                                            
 Number 0023                                                                   
 MARIE SANSONE, Assistant Attorney General, Natural Resources                  
 Section, Civil Division (Juneau), Department of Law, said she                 
 wasn't prepared to answer a question about municipal jurisdiction             
 but could look into it.                                                       
 REPRESENTATIVE PORTER suggested it would require a city attorney's            
 Number 0036                                                                   
 REPRESENTATIVE CROFT noted that they are exempting the state and              
 REAAs from strict liability for release of hazardous substances.              
 However, in looking at the statute, it seemed that for strict                 
 liability, there are many exceptions, so that it is a "sort of                
 modified strict liability."  He asked whether other private                   
 individuals, then, are still liable.                                          
 MS. SANSONE said that is accurate.  The strict liability statute              
 begins with a presumption that everyone is strictly liable not only           
 for clean-up costs and remediation, but also for damages.  This               
 limitation on liability is for the REAA schools and the state in              
 that context.  It limits strict liability but not the state's                 
 liability for damages if the state were at fault, were negligent,             
 or took some intentional or reckless action that resulted in the              
 damage.  Ms. Sansone noted that AS 46.03.822 contains mechanisms by           
 which parties may seek contribution or seek to shift that strict              
 liability to another party if they believe they can apportion fault           
 or if they were innocent purchasers.                                          
 Number 0112                                                                   
 REPRESENTATIVE CROFT asked, "So, a municipal school district, a               
 municipal school building, after this law, would still be under the           
 provision, but REAAs wouldn't?  We're making a distinction between            
 the schools we run and the schools ... everyone else runs?"                   
 MS. SANSONE said that is correct.  This provision in the bill                 
 resulted from a settlement of the Toksook Bay litigation, and it              
 was part of the agreement that the parties arrived at in order to             
 obtain the funding for that settlement.  She believed it was                  
 arrived at through the Senate Finance Committee.                              
 Number 0139                                                                   
 REPRESENTATIVE BERKOWITZ said he was curious to know more about the           
 origins of this particular provision, adding that "clearly, it's              
 not part of a settlement provision, as it seems a little unusual              
 for us to exempt ourselves and still hold everyone else to a                  
 different standard."                                                          
 MS. SANSONE said she recalled when this was discussed in the Senate           
 Finance Committee.  It was at the request of the DEC, the                     
 Department of Education and the Department of Law.  The Senate                
 Finance Committee agreed with their recommendation and asked that             
 it be appended to this bill.  "And we've just carried it over once            
 again," she added.                                                            
 Number 0167                                                                   
 REPRESENTATIVE BERKOWITZ said he could understand why the state               
 would want to exempt itself from liability, but he did not                    
 necessarily think that was always the prudent course to follow.               
 REPRESENTATIVE CROFT stated a conflict:  The law firm he had been             
 associated with had represented the Lower Kuskokwim School District           
 in that Toksook Bay litigation at the time.  However, he had no               
 continuing financial relationship with them.                                  
 CHAIRMAN GREEN expressed appreciation for the disclosure.                     
 Number 0202                                                                   
 LARRY DIETRICK, Program Manager, Prevention and Emergency Response            
 Program, Division of Spill Prevention and Response, Department of             
 Environmental Conservation (DEC), came forward to answer questions.           
 He stated, "We reviewed the language in the proposed amendments,              
 and we acknowledged and concurred with the changes made in the                
 committee substitute on the Senate side."  He said the Tier II                
 reporting requirements are federal, not state, requirements.                  
 MR. DIETRICK explained, "The amendments made in the committee                 
 substitute were to make it clear that the reporting was to occur at           
 the local level, with the municipalities and with the State                   
 Emergency Response Commission.  And the nature of those amendments            
 were [sic] to ensure that we didn't create another program in our             
 agency to oversee or inject other reporting requirements in.  And             
 we do agree with those changes that were made in the committee                
 substitute.  And there is a letter from the director of the                   
 Division of Spill Prevention and Response, which I believe should             
 be in your packets, acknowledging this."  He said he had copies of            
 that letter, noting that it was dated February 24.                            
 CHAIRMAN GREEN requested a copy, then asked, "And this in essence             
 says what you said, that the DEC has no problem, then, in being the           
 repository for these forms?"                                                  
 Number 0289                                                                   
 MR. DIETRICK restated that they agree with those amendments that              
 were made.  He noted that SB 33 had transferred SERC staff                    
 responsibilities from the DEC to the DMVA.  He emphasized that the            
 reporting requirements being discussed relate to information that             
 must be reported by the facility or business to the local fire                
 department, to the local emergency planning committee, and to the             
 SERC.  It is not required to be reported to the DEC, and they                 
 didn't want to get into that role.                                            
 MR. DIETRICK stated, "Beyond that, we have, for the SERC - when we            
 were originally staffing the SERC - received those reports.  And              
 what we actually do with that information - this is information               
 about the chemicals that are being stored - we update a baseline              
 report that was prepared in 1994 that maps all of the hazardous               
 substances in the state, where they are stored.  So, we use this              
 information that's reported to update what we call a `hazards                 
 analysis,' so we can locate where the ammonia, chlorine and other             
 substances are.  And that's how that information is used."                    
 MR. DIETRICK said beyond that, the information is used at the local           
 level for the responders; he believes that should probably continue           
 to be its primary purpose.  That is why the DEC believes the                  
 determination of threshold levels for reporting is appropriately              
 placed at that level.  He stated, "We don't object to continuing in           
 that role of receiving the reports and updating the state `hazards            
 analysis.'  And since the proposed amendments under consideration             
 today place management of the other aspects with the SERC and the             
 municipalities, yeah, we do not object, and we will continue to               
 receive those reports and update the analysis."                               
 Number 0370                                                                   
 CHAIRMAN GREEN indicated that for areas like Anchorage, the report            
 would be with the DEC but the municipality may respond out of its             
 jurisdiction, for example.  He asked whether there was any problem            
 with the DEC providing that material to those likely to respond.              
 MR. DIETRICK said the federal requirement is that those three                 
 entities identified get the report; in theory, local fire                     
 departments should already be receiving the reports, as should the            
 local emergency planning committee and the SERC.  The DEC has                 
 simply been the receiving agent for the SERC and does nothing                 
 further unless there is a request from a municipality, for example.           
 CHAIRMAN GREEN asked whether an area beyond the municipality where            
 it has a firefighting system would also have access to the                    
 MR. DIETRICK said yes.                                                        
 Number 0424                                                                   
 PAMELA LaBOLLE, President, Alaska State Chamber of Commerce, came             
 forward to testify, saying what the chamber likes about this                  
 legislation is that it is user-friendly.  Too often, government               
 requests information from businesses without giving much thought to           
 how it will be used.  She had recently heard that under the                   
 "welfare-to-work" program, the Department of Health and Services              
 was looking at reducing a 33-page form to a single page.  She                 
 suggested that such forms can grow over time, with increasingly               
 more things required than should be.                                          
 MS. LaBOLLE stated her understanding that four different forms are            
 now required, to four entities, which this bill would reduce to one           
 form reported to three agencies.  Availability of information                 
 necessary to protect the "response people" must be the goal.  To              
 her understanding of this legislation, it answers that need, with             
 perhaps some tweaking, from testimony she had heard.                          
 Number 0506                                                                   
 REPRESENTATIVE CROFT asked whether the chamber has taken a position           
 on placarding or on the state's "letting itself off on the release            
 of chemicals."                                                                
 MS. LaBOLLE said they hadn't looked at those.  Although generally             
 the chamber believes the state ought to be responsible for                    
 everything for which it asks others to be responsible, she could              
 not speak to this particular issue and did not know the specifics.            
 CHAIRMAN GREEN asked whether the concern about compressed gasses              
 had been an issue in internal discussions.                                    
 MS. LaBOLLE said they had not discussed it.  Although the chamber's           
 interests may seem simplistic, it is important to them that the               
 requirements are being reduced and that more succinct information             
 is being provided to the right people, creating less of a problem             
 for business.  "It sounds like a good deal," she added.                       
 CHAIRMAN GREEN commented that "reduction and uniformity" certainly            
 sounds like the right idea, if it is complete.                                
 MS. LaBOLLE concurred.                                                        
 CHAIRMAN GREEN asked whether there were further questions,                    
 indicating that everyone who had signed up to testify had done so.            
 Number 0577                                                                   
 REPRESENTATIVE BERKOWITZ said he didn't see a fiscal note for the             
 SERC, which he understood would have a great deal of additional               
 responsibility on account of this legislation.                                
 MS. KREITZER said there is no fiscal impact on the SERC.  It isn't            
 an entity unto itself; whatever expenses are incurred by the SERC             
 are in the operating budget for the DMVA and the DEC.                         
 REPRESENTATIVE BUNDE made a motion to move HCS CSSB 39(JUD) from              
 the committee with individual recommendations and attached fiscal             
 REPRESENTATIVE CROFT explained that he liked the bill as he                   
 understood it started out, and it accomplishes that portion well:             
 getting the affected groups together, simplifying it, coordinating            
 it, and making one form that includes only what needs to be                   
 reported.  However, he does not like the state immunizing itself              
 for things that it requires others to do.  Although the statute               
 being amended says "strict liability," it strikes an appropriate              
 balance between liability for something spilled in the operation of           
 a business and being able to show that a third party did it or that           
 "you just took over this property and didn't know there was a tank            
 there."  He called it "a sort of strict liability with a pretty               
 heavy caveat."                                                                
 REPRESENTATIVE CROFT said although he understood the need for                 
 uniformity, he didn't know why they shouldn't continue to require             
 the compressed amounts that he understood the Interior Fire Chiefs            
 Association of Alaska needed.  That association also believes                 
 placarding is a good safety device.  He concluded, "So, the core is           
 not only unobjectionable but seems the right approach.  The other             
 things that are in addition to that, I object to."                            
 CHAIRMAN GREEN said he certainly shared that concern about the                
 compressed gasses.                                                            
 Number 0754                                                                   
 REPRESENTATIVE PORTER said the state recognizes that it has been              
 the victim of the "deep pocket" theory for many years.  "And when             
 you have their culpability to a strict liability standard, they're            
 dead meat, and that's what they're trying to avoid," he stated.               
 REPRESENTATIVE BERKOWITZ said notwithstanding that, it seemed                 
 preferable to show that the state would not be treated differently            
 from anyone else.  He offered Amendment 1, to delete Section 1.               
 REPRESENTATIVE BUNDE objected because there was a motion on the               
 table.  He offered to withdraw his own motion.                                
 CHAIRMAN GREEN concurred, saying he had a concern regarding                   
 compressed gasses.                                                            
 REPRESENTATIVE BUNDE withdrew his motion to move the bill.                    
 REPRESENTATIVE BERKOWITZ renewed his offer of Amendment 1, saying             
 he would subsequently address compressed gasses.                              
 CHAIRMAN GREEN noted that Amendment 1 would eliminate Section 1.              
 REPRESENTATIVE JAMES said she had no problem with that.  On the               
 compressed gas issue, she had no documents in her packet from the             
 Interior firefighters association.  She had also expected Tim                 
 Biggane to be on teleconference; he is her neighbor and friend, and           
 she was under the impression that the Alaska Fire Chiefs                      
 Association was happy with this.                                              
 CHAIRMAN GREEN asked whether there was further discussion about               
 eliminating Section 1, then asked whether an objection was                    
 REPRESENTATIVE PORTER said yes.                                               
 CHAIRMAN GREEN requested a roll call vote.  Voting to adopt                   
 Amendment 1 were Representatives Croft and Berkowitz.  Voting                 
 against it were Representatives Bunde, Porter, James and Green.               
 Representative Rokeberg was absent.  Therefore, Amendment 1 failed,           
 4 to 2.                                                                       
 CHAIRMAN GREEN offered Amendment 2, "on page 5, that we reinstate             
 lines 18 and 19."                                                             
 Number 0922                                                                   
 REPRESENTATIVE JAMES stated her understanding that only Anchorage             
 was concerned about it and that as a municipality, they have other            
 options.  Mentioning the "hillside" situation, she asked:  If they            
 couldn't get it passed within their own municipality, why would               
 they want the state to do it for them?  She said if the rest of the           
 state is comfortable with not having it there, it seemed that                 
 Anchorage should be able to solve the problem within its bounds.              
 CHAIRMAN GREEN stated, "What I think they said was ... that they              
 couldn't pass anything that would require this outside of their               
 regular jurisdiction, just like they had the problem with the                 
 police in the `hillside area.'  They had excluded themselves on               
 `hillside' from the municipality, and so, they couldn't force                 
 police protection up there.  That's what they're saying, and the              
 same thing with this fire code:  If they were to pass something               
 like this, putting the gasses back in for Anchorage, and had to               
 answer in Eagle River or somewhere else, they wouldn't know in                
 Eagle River whether there were compressed gasses, because their               
 jurisdiction didn't cover that."                                              
 REPRESENTATIVE JAMES said she thought they had done that to the               
 hillside area by a vote.  She asked, "And isn't that still the                
 option on this?"                                                              
 There were comments about how controversial that was.                         
 MS. KREITZER said she had spoken to Tim Biggane, who represents the           
 Alaska Fire Chiefs Association, and his preference was to not put             
 back in compressed gasses.  She had also spoken to Mike Oden                  
 (Safety Training Officer for the Risk Management Department of the            
 University of Alaska Fairbanks), who is active in "fire politics"             
 throughout the state and talks with other fire chiefs.  She stated,           
 "And his response to me was, the problem with ... putting this                
 amendment in is the size of the cylinder.  The 150-pound cylinders,           
 he felt, you get into every welding cylinder.  If you are intent on           
 putting the compressed gas back in the bill, his suggestion would             
 be ... that the reporting requirement be greater than a 1,000-pound           
 MS. KREITZER pointed out that the Anchorage Fire Department opposes           
 the change regarding compressed gasses.  In addition, the Interior            
 Fire Chiefs Association of Alaska had been asked by someone else to           
 submit a letter saying they oppose deletion of the placarding                 
 program in Title 18.  To her knowledge, they are the only                     
 opposition to this bill.                                                      
 REPRESENTATIVE CROFT said he appreciated the correction.                      
 Number 1077                                                                   
 REPRESENTATIVE PORTER asked whether they would want the 200 amended           
 to 1,000.                                                                     
 MS. KREITZER said the bottom line, if it was amended, would be a              
 reporting requirement of greater than a 1,000-pound cylinder.                 
 CHAIRMAN GREEN said he had no problem with a friendly amendment.              
 REPRESENTATIVE BUNDE said, "So moved."                                        
 CHAIRMAN GREEN noted the motion to amend Amendment 2, "to put in              
 1,000 instead of 200."  He asked Ms. Venta what size tank 1,000               
 cubic feet under compression at standard conditions would be.                 
 MS. VENTA said there was no simple answer because everything is               
 different.  She suggested that Craig Goodrich answer.                         
 CHAIRMAN GREEN specified that when he'd said it was a friendly                
 amendment, he was talking about changing 200 cubic feet to 1,000              
 cubic feet, not to 1,000 pounds.                                              
 Number 1163                                                                   
 REPRESENTATIVE PORTER said when first referenced as a compromise,             
 it was 1,000 pounds.                                                          
 CHAIRMAN GREEN indicated that was their compromise, not his.  He              
 noted that a 1,000-pound tank is huge.                                        
 MS. VENTA pointed out that 1,000 pounds of compressed gasses could            
 require many, many cylinders.  A cylinder might weigh 150 pounds,             
 but the actual compressed gas inside might be only 40 pounds.  They           
 could be talking about a huge number of cylinders, which to her               
 creates a greater hazard.                                                     
 CHAIRMAN GREEN asked Ms. Venta's opinion on whether they should               
 talk about weight of tanks and liquids, compressed gas, or the                
 amount of gas that is compressed which is capable of doing damage.            
 MS. VENTA replied, "Well, I think where we are with cubic feet is             
 fine.  I think we can work with cubic feet."                                  
 An unidentified speaker asked:  How many?                                     
 CHAIRMAN GREEN noted that it was Representative Bunde's amendment.            
 REPRESENTATIVE BUNDE agreed but said he had been referring to 1,000           
 CHAIRMAN GREEN apologized.                                                    
 MS. KREITZER said she didn't want to add to the confusion, but if             
 they wanted to amend the bill to the way it was previously,                   
 "compressed gasses equal to or more than 200 cubic feet at standard           
 temperature and pressure," she would continue to work with the fire           
 chiefs to find out whether that is the appropriate amount.  She               
 stated her preference for doing it in the next committee.                     
 CHAIRMAN GREEN responded that he'd prefer that it be 1,000, to do             
 away with the individual cylinder in the back of somebody's garage,           
 which would be almost unworkable.  He said a compression of 1,000             
 cubic feet in standard conditions is a bigger tank, certainly.                
 "And if somebody wants that in weight, rather than cubic feet                 
 compressed, I have no objection to that, but I would rather have              
 the 1,000 than the 200," he concluded.                                        
 Number 1270                                                                   
 REPRESENTATIVE BUNDE expressed reluctance to specify a size that he           
 didn't have a better handle on, but he wanted to increase the 200.            
 He asked whether they needed additional expertise.                            
 REPRESENTATIVE JAMES said she did not feel comfortable because they           
 didn't seem to have the right information.  She asked whether there           
 was another committee of referral.                                            
 MS. KREITZER replied that there was a House Finance Committee                 
 referral.  She offered to work with that committee to rectify this            
 issue, if so directed by the current committee.                               
 REPRESENTATIVE JAMES said she would like to ask Tim Biggane to                
 testify or provide information, as she trusted his judgment.                  
 CHAIRMAN GREEN stated his preference for working on it in the                 
 current committee.  He noted that on the table was "an amended line           
 18 and 19" to reinstate the language, "compressed gasses equal to             
 or more than 1,000 cubic feet at standard temperature and                     
 pressures".  He asked whether there was a continued objection.                
 REPRESENTATIVE JAMES said yes.                                                
 REPRESENTATIVE BUNDE said he supported the increase but was not               
 comfortable because he did not know how much 1,000 cubic feet was             
 in practical terms.  For example, does this size of container                 
 exist?  Are they putting in a prohibition that if they had said 800           
 or 1,100 would have fallen within some industry standard?                     
 REPRESENTATIVE PORTER commented, "If there is a direct correlation            
 between the 200 and the 150-pound tank, then 1,000 would be a 750-            
 pound tank."  However, he did not know whether that was the                   
 appropriate size.                                                             
 CHAIRMAN GREEN suggested the increase to 1,000 would do away with             
 the individual welding shop, for example.                                     
 REPRESENTATIVE BUNDE said he assumed the sponsor would try to "put            
 a finer point on this," which would remove his concern.                       
 CHAIRMAN GREEN asked Craig Goodrich whether he could get them out             
 of this dilemma.                                                              
 Number 1446                                                                   
 MR. GOODRICH replied, "Not easily, Mr. Chairman.  The problem is              
 that the gas is compressed into different size of cylinders.  It              
 depends on if you're talking about fluorine, LNG, LPG; there's a              
 whole host of things.  The cylinder sizes are not standardized, and           
 neither is the weight. ... If the interest is to have something               
 larger than two or three cylinders in the back of a garage, then I            
 think that the problem is going to become a little bit broader, in            
 that the specific quantities for specific kinds of compressed                 
 gasses are going to have to be identified."                                   
 MR. GOODRICH suggested they may have to talk to the various                   
 industries if they want amounts around 1,000 pounds.  It would vary           
 from 750 pounds to a one-ton cylinder, for example, for fluorine;             
 the latter is as big as a conference table and is a considerable              
 amount of compressed gas.  It would be substantially different for            
 other kinds of gasses, however, and it would require research.                
 CHAIRMAN GREEN asked whether "the 1,000" would remove it from the             
 individual garage.                                                            
 MR. GOODRICH replied, "Unquestionably."                                       
 CHAIRMAN GREEN said that was what they were after.                            
 MS. VENTA pointed out that Anchorage is looking at commercial                 
 businesses, as residential use is not regulated.                              
 Number 1540                                                                   
 CHAIRMAN GREEN mentioned that it has been in statute for some time            
 at 200 cubic feet, without all this controversy.  He asked whether,           
 by increasing it to 1,000, they had definitely removed it from the            
 back yard and now were talking about something that posed a                   
 significant risk in a commercial building to a firefighter.                   
 MS. VENTA replied, "I would absolutely say so, yes."                          
 CHAIRMAN GREEN asked whether there was further discussion about               
 Amendment 2, including 1,000 cubic feet.                                      
 REPRESENTATIVE JAMES removed her objection but said she was still             
 not comfortable with it.  Noting that there was another committee             
 of referral, she said she could talk to them if necessary and would           
 talk to Mr. Biggane meanwhile.                                                
 CHAIRMAN GREEN announced that there being no objection, Amendment             
 2 was adopted.                                                                
 Number 1637                                                                   
 REPRESENTATIVE BERKOWITZ offered a conceptual amendment, saying he            
 would like to restore the placarding program in Sections 2, 3 and             
 8.  He said it doesn't cost anything, it doesn't hurt anybody, and            
 testimony indicated the firefighters appreciate it.                           
 REPRESENTATIVE BUNDE objected, suggesting the legislature did not             
 plan to fund this and he would not encourage it.  He suggested if             
 Anchorage, Eagle River or North Pole want to have placarding,                 
 nothing prevents that.  He added, "I'm afraid if we say the state             
 must, then we've got a good excuse for state fire marshal employees           
 to travel to the far corners of the state to put up a three-by-five           
 placard during fishing season."                                               
 REPRESENTATIVE BERKOWITZ replied that he didn't share the latter              
 concern.  This seemed to be an instance where statewide uniformity            
 is desired.  Because firefighters respond statewide, there                    
 shouldn't be different symbols in different parts of the state.               
 MS. KREITZER said the problem is that the state fire marshal's                
 program isn't uniform with Title 29 or with the federal reporting             
 requirements.  The testimony from the state department itself is to           
 get rid of the program, and the state fire marshal doesn't want it.           
 REPRESENTATIVE BERKOWITZ responded, "That's not what I heard."                
 MS. KREITZER said she had minutes from previous meetings and                  
 Representative Berkowitz could ask him on the record again.                   
 CHAIRMAN GREEN asked whether Mr. Goodrich had heard the dialogue.             
 Number 1781                                                                   
 MR. GOODRICH replied, "The position of the state fire marshal's               
 office is that this program requires a rather substantial up-front,           
 meaning front-loaded, expenditure in order to get the program up              
 and running.  Anchorage's program may or may not be carrying                  
 itself, but it is at a state at this point that it is near-self-              
 MR. GOODRICH continued, "The big issue, however, was the up-front             
 expenditure, meaning to the tune of a million dollars or more in              
 man-hours and time, in order to get the program logged in, because            
 individual businesses simply do not respond.  They ... apparently             
 have not had the time to sit down and look at the documentation               
 that comes across their desk, along with trying to conduct business           
 in general; and so, they don't report."  He said with nine                    
 individuals to cover the entire state, the issue would be how to              
 conduct this placarding program in addition to all the other                  
 enforcement and plan review processes, for example.                           
 REPRESENTATIVE BERKOWITZ asked, "Is what you're saying is because             
 you don't have the resources, you can't see that the program is               
 carried through?"                                                             
 MR. GOODRICH replied, "That is correct."                                      
 REPRESENTATIVE BERKOWITZ asked whether the program itself is                  
 objectionable to Mr. Goodrich.                                                
 MR. GOODRICH replied, "The program itself, it has two simple                  
 factors.  One is the reporting of hazardous substances that can be            
 passed along for the use of fire departments as they log that                 
 information to their pre-fire plans. ... And that component of the            
 program is useful. ... The actual placarding portion of the                   
 program, which goes hand-in-hand with that, has been deemed                   
 primarily to be useless, simply because it is not sufficient enough           
 to get the firefighter, early on, full information of what they can           
 expect to see when they go inside of a building, because they've              
 been placarded for the most hazardous substance that is ever on the           
 MR. GOODRICH explained, "The problem comes in when you have a fire            
 and you mix more than one product with anything else; you get into            
 heat and time, and in many cases, pressure.  So, you're                       
 manufacturing so many different hazardous materials that it isn't             
 possible at all to even know what you have there.  So, we default             
 to what we call a `uniform standard of operation' or `hazardous               
 conditions.'  Now, the University of Alaska has seen fit to                   
 substantially modify the program, although it is in complete                  
 noncompliance with anybody else.  But they wanted to be more                  
 specific, and they have done so, and their program seems to work              
 with them.  And on the face of it, the program is not entirely                
 REPRESENTATIVE BERKOWITZ suggested in nonemergency situations, a              
 skull-and-crossbones, lightning bolt or other symbol would be                 
 useful to keep children away, warn "don't smoke," and so forth.  He           
 asked whether he was reading too much into the placarding.                    
 MR. GOODRICH explained that there is a six-by-six diamond, split              
 into four smaller diamonds with different colors, each of which has           
 a number from one to four.  The general public has no idea how                
 those colors and the numbers within them relate.  It is even                  
 problematic keeping firefighters up to speed with that.  In fact,             
 the Anchorage Fire Department puts the benchmark for those on the             
 backs of bathroom doors, as a memory aid for the firefighters.                
 CHAIRMAN GREEN expressed concern that while it might work in                  
 Anchorage, it would be difficult elsewhere and very expensive.  He            
 mentioned the $1 million figure.                                              
 REPRESENTATIVE BERKOWITZ withdrew the amendment.                              
 REPRESENTATIVE BUNDE made a motion to move 0-LS0214\F, Lauterbach,            
 4/11/97, as amended, from committee with individual recommendations           
 and attached fiscal notes.  There being no objection, HCS CSSB
 39(JUD) moved from the House Judiciary Standing Committee.                    
 CSSB 3(JUD) - MINOR'S CURFEW VIOLATIONS                                       
 [Contains discussion of HB 16 following number 0903]                          
 TAPE 97-75, SIDE A                                                            
 Number 0006                                                                   
 CHAIRMAN GREEN announced the next item of business was CS for                 
 Senate Bill No. 3(JUD), "An Act authorizing prosecution and trial             
 in the district court of municipal curfew violations, and providing           
 for punishment of minors upon conviction for violation of a curfew            
 ordinance."  It had been heard previously by the committee.                   
 MYRNA MAYNARD, Legislative Administrative Assistant to Senator Drue           
 Pearce, came forward on behalf of the sponsor.  With her was Jack             
 Chenoweth of Legislative Legal Services, to whom she had provided             
 what she thought was Representative Porter's concern.  Mr.                    
 Chenoweth had come up with an amendment (0-LS0078\E.1), which was             
 in committee packets.  However, this amendment would necessitate a            
 concurrent resolution because it changes the title.  She asked                
 whether Representative Porter had read the amendment.                         
 REPRESENTATIVE PORTER said no.                                                
 MS. MAYNARD said she wasn't sure it did what Representative Porter            
 wanted to do.                                                                 
 REPRESENTATIVE BUNDE requested confirmation that if they adopted              
 this amendment, a municipality might establish its own ordinance to           
 charge parents with being a part of this curfew violation but that            
 this law would not require that a municipality do so.                         
 Number 0178                                                                   
 ANNE CARPENETI, Assistant Attorney General, Legal Services Section,           
 Criminal Division, Department of Law, said she had not had much               
 chance to read it but thought it was optional.                                
 REPRESENTATIVE BUNDE and CHAIRMAN GREEN noted that Mr. Chenoweth,             
 the author, was agreeing.                                                     
 REPRESENTATIVE BUNDE said he'd wanted to clarify that they weren't            
 going to establish a law that would require parents to be arrested;           
 however, if a municipality felt this was a problem and would like             
 to follow up Representative Porter's concern about involving                  
 parents, a concern which he himself shared, a municipality could              
 write an ordinance to achieve that.                                           
 REPRESENTATIVE PORTER pointed out there was a second alternative,             
 which he believed Ms. Carpeneti was prepared to explain.                      
 Number 0335                                                                   
 MS. CARPENETI said she'd been asked to find out what happens to               
 parents if they don't show up.  She'd spoken with Judge Froehlich             
 in Juneau, who handles these cases that go directly to district               
 court and not through the Division of Family and Youth Services               
 (DFYS); those are minor consuming cases, tobacco cases and various            
 traffic offenses.  The law requires parents to accompany their                
 children presently.  Judge Froehlich told Ms. Carpeneti that                  
 parents generally do show up with their kids, and if they don't, a            
 summons is issued.  It is served by the Judicial Services; they               
 generally call the parents and ask whether they want to be served             
 personally or to pick up the summons at the courthouse, in person.            
 CHAIRMAN GREEN stated his understanding that it isn't "a contempt"            
 if they don't show up but that a summons is issued.                           
 MS. CARPENETI responded, "If they don't show up.  I assume at a               
 certain point, if they are served with a summons and they don't               
 show up, then maybe an order -- and Judge Froehlich told me that              
 only once has he had to issue an order to show cause why a parent             
 could not be held in contempt for not showing up."                            
 REPRESENTATIVE BUNDE asked whether they were doing this based on              
 state law or local ordinance.                                                 
 MS. CARPENETI said state law.                                                 
 REPRESENTATIVE BUNDE asked:  And this summons is issued after the             
 young person has failed to respond to a summons?                              
 MS. CARPENETI stated her belief that a summons is issued, before              
 the first appearance, to the parents too.                                     
 REPRESENTATIVE BUNDE asked whether the summons for the young person           
 and the summons for the parent are issued concurrently.                       
 MS. CARPENETI replied, "I assume if the person is cited for an                
 offense, then that contains the summons, and then they issue a                
 summons for the parent separately."  She had spoken with Doug                 
 Wooliver of the Alaska Court System, who had checked that morning             
 with the Anchorage court system.  She explained that the people in            
 the court system are the ones who know, because the state doesn't             
 appear on these cases, nor does DFYS.  Mr. Wooliver had told her              
 that they do require in Anchorage that the parents show up, and if            
 they don't, they issue a summons for them to come in.                         
 Number 0515                                                                   
 REPRESENTATIVE PORTER asked what the bill does, then, in context of           
 the existing system.                                                          
 JACK CHENOWETH, Attorney, Legislative Legal and Research Services,            
 Legislative Affairs Agency, explained that the sponsor had asked              
 that the provision for violation of a curfew be added to the list             
 of offenses for which a minor can be prosecuted in district court.            
 In Anchorage, much of the handling of these relatively low-level              
 offenses is through a civil or administrative process that                    
 Anchorage takes advantage of under the municipal code; therefore,             
 an exception had to be built in for that.  As the bill moved along,           
 provision was made for a fine of not more than $250 and the ability           
 to satisfy that fine through a community work provision, all added            
 by the Senate Judiciary Committee.                                            
 Number 0609                                                                   
 REPRESENTATIVE PORTER asked whether it allows a juvenile case that            
 would have been handled in "Juneau court" to go to district court.            
 MR. CHENOWETH said the statutory law today simply authorizes a                
 municipality to adopt curfew ordinances.  He explained, "The                  
 question, I guess, in the sponsor's mind is:  Where do these go?              
 How are these to be handled?  And in the absence of anything else,            
 I assume that they would be handled through the juvenile                      
 adjudication and delinquency process, because there would be no               
 exception made for them for a criminal hearing.  So, the sponsor's            
 approach was to move them out from under the adjudication-                    
 delinquency 47.12 provisions and over into the criminal side, with            
 jurisdiction assigned in the district court.  And we've kind of               
 gone on from there."                                                          
 Number 0671                                                                   
 REPRESENTATIVE PORTER asked who is requesting this.                           
 MS. MAYNARD said it came about because the City and Borough of                
 Juneau wanted a curfew ordinance.  Only through the DFYS or                   
 superior court could those cases be handled.  However, the DFYS is            
 overloaded, and Juneau didn't do a curfew ordinance because there             
 is no point when kids know nothing will happen if they break                  
 REPRESENTATIVE PORTER asked Ms. Carpeneti to stop him if he got off           
 track, then stated his understanding that the other alternative               
 would allow these to go through the civil side, such as with the              
 programs in Anchorage for this kind of an offense.  He suggested              
 Juneau is asking to take an area of violation that the DFYS doesn't           
 have time to handle and put it into the district court, which                 
 doesn't have time to handle it.                                               
 MS. MAYNARD said she'd also spoken to Judge Froehlich, who likes              
 this bill.  He has a Friday court for juvenile offenses dealing               
 with tobacco, alcohol, and so forth.  He feels that his caseload              
 will not increase all that much, because of the kids that are                 
 drinking and speeding, for example, 75 percent will be the same               
 ones.  She added that the bill does not change what Anchorage is              
 doing now.                                                                    
 Number 0828                                                                   
 REPRESENTATIVE CROFT asked why Juneau cannot do whatever Anchorage            
 is doing.                                                                     
 MR. CHENOWETH said there is no good reason.  His sense is that                
 Anchorage has the advantage of a population size that will support            
 that kind of administrative arrangement; that may not be as                   
 possible or desirable in Juneau, which is one-tenth the size.                 
 REPRESENTATIVE CROFT asked how Anchorage handles this.                        
 Number 0903                                                                   
 MARGOT KNUTH, Assistant Attorney General, Criminal Division,                  
 Department of Law, specified she was representing the Governor's              
 Children's Cabinet on youth and justice initiatives.  The procedure           
 used by the Municipality of Anchorage in curfew matters is one of             
 the models this Administration raises to the rest of the state for            
 effective intervention with at-risk juveniles, including curfew               
 violators.  Anchorage had adopted a system whereby the juvenile is            
 summonsed to appear before a hearing officer who is acting as a               
 judge.  The civil penalties available don't include detention, nor            
 is there a criminal record.  But short of that, there is a                    
 mechanism for a fine or community work service in lieu of it.                 
 MS. KNUTH said HB 16 includes provisions that would encourage other           
 cities and municipalities to adopt similar programs.  Criminalizing           
 curfew violations is inconsistent with the direction the                      
 Administration is trying to move.  Instead of being serious                   
 offenders, these are kids at risk of becoming criminals.  What is             
 appropriate is intervention, rather than prosecution.                         
 MS. KNUTH continued, "We did ask the sponsor of the bill if she               
 would include the Governor's initiatives in this area, and she's              
 been reluctant to do so to this point.  And there's some                      
 philosophical disagreements that people have on how to relate to              
 at-risk youth.  And, frankly, Judge Froehlich is pretty much a one-           
 man crusade in this state.  He's the only judge I know who is                 
 putting kids in detention on tobacco violations, and Johnson Center           
 is seriously overcrowded.  There's a difference of opinion on                 
 whether that is an appropriate disposition for those cases."                  
 MS. KNUTH said Juneau could adopt the same "hearing officer                   
 diversion system" that is working well in Anchorage.  She noted               
 that Anchorage has no intention of utilizing this if it passes.               
 The prosecuting attorney there does not want to do a bunch of                 
 curfew violations; their resources are strapped already.                      
 Number 1069                                                                   
 CHAIRMAN GREEN asked whether Ms. Knuth knew of municipalities other           
 than Anchorage or Juneau having curfew laws that this would affect.           
 MS. KNUTH did not know how many municipalities had adopted curfew             
 ordinances, although she believed Fairbanks had done so.  She noted           
 that HB 16 was coming to this committee soon.  She suggested it               
 might afford the committee an opportunity to review the array of              
 options available to respond to this level of offense.                        
 CHAIRMAN GREEN asked whether there was any objection to holding               
 this over and looking at HB 16 as well; he then announced they                
 would revisit SB 3 when they take up HB 16.                                   
 CSSB 70(JUD) - DISCHARGE OF FIREARMS AT BLDGS.                                
 Number 1175                                                                   
 CHAIRMAN GREEN announced the next item of business was CS for                 
 Senate Bill No. 70(JUD), "An Act relating to the discharge of                 
 firearms at or in the direction of buildings and dwellings."  As              
 only a few minutes remained, he asked whether the sponsor's                   
 representative could lead them through the bill that quickly.                 
 JAMES ARMSTRONG, Legislative Assistant to Senator Dave Donley,                
 presented the bill on behalf of the sponsor.  Basically, it creates           
 a class B felony, the discharge of a firearm at a dwelling or in              
 the direction of a building when it is occupied.  Under existing              
 law, these offenses are classified as misdemeanors unless proof is            
 available that the person knew the building was occupied at the               
 time of the shooting or there was more than $500 in property                  
 damage.  Mr. Armstrong mentioned shootings at dwellings in Juneau             
 and Anchorage in the past year.  He said the sponsor believes there           
 is no justification for this type of activity, and the bill was               
 introduced to address this problem.                                           
 Number 1227                                                                   
 REPRESENTATIVE BERKOWITZ referred to page 2, subsection (3)(A)(ii),           
 and said the language is essentially the same as that contained in            
 Section 3; that raises equal protection problems in the event that            
 there is a prosecution based on the felony, rather than the                   
 misdemeanor.  Generally, when the level of a charge relies solely             
 on prosecutorial discretion, it is problematic, although he did not           
 recall offhand the cases that stand for that proposition.  He                 
 suggested it would be easy to pull out subsection (A)(ii), saying,            
 "Then we're still covered."                                                   
 ANNE CARPENETI testified again on behalf of the Department of Law,            
 saying that is also the department's concern:  When similar conduct           
 is covered by two different statutes, there are potential problems            
 with prosecutorial discretion.  She explained, "And the problem is,           
 there are no other circumstances that separate the two.  ... If               
 there were circumstances here that separated the two, there are               
 other provisions in law that say, `except for under other                     
 circumstances.'  But here, it's really the same language."                    
 CHAIRMAN GREEN asked:  If Section 3 were gone, would the bill be as           
 MS. CARPENETI replied, "No, if (3)(A)(ii) were gone."  She stated             
 her belief that that was Representative Berkowitz's suggestion.               
 REPRESENTATIVE BERKOWITZ responded that either one could disappear.           
 MS. CARPENETI stated, "Well, if Section 3 were gone, ... what you             
 would have is this section in law, paragraph (3) under .210, which            
 is, I believe, fifth-degree misconduct involving weapons, without             
 that provision.  So, they would still be the same:  discharge of              
 weapon.  Well, it wouldn't be at a building.  That's the                      
 Number 1365                                                                   
 REPRESENTATIVE BERKOWITZ said it was still similar enough that it             
 wouldn't withstand scrutiny.  "And you'd automatically see this,              
 what's intended to be a B felony, bumped down to be an A                      
 misdemeanor," he added.                                                       
 MS. CARPENETI said it would be a problem.  It is hard to predict              
 the outcome, and the state would hope to win on it, but she thought           
 it definitely would be litigated.  She stated, "Our suggestion was            
 at least to remove the provision in (ii) that says, `with a risk of           
 damage to property or'.  I think the problem is that when you're              
 dealing with just damage to property, you've got charges under                
 criminal mischief and charges under this section, and this section            
 doesn't have any provision gradating the damage to property                   
 according to the amount of damage that's done ...."                           
 REPRESENTATIVE BERKOWITZ said he didn't think they were giving up             
 anything.  "If you fire a gun at a building and there's a risk of             
 physical injury, then you're almost certainly in the situation of             
 an assault," he added.                                                        
 MS. CARPENETI responded, "Well, particularly because the intent               
 language at the beginning of the bill says that ... if you                    
 discharge a firearm at a building and the building is occupied, the           
 legislative intent is that it's strict liability as to that element           
 that the building was occupied.  So, yes, I would agree with you."            
 REPRESENTATIVE CROFT said the part about risk of damage to property           
 had confused him when he read it.  It seemed that anytime one                 
 discharged a firearm at a building, there was risk of damage to               
 property, namely, to the building.  One could be just shooting at             
 a shed, knowing it was unoccupied.  While it might not be the best            
 conduct, did it rise to this level?  As he read the bill, it would            
 do so under this provision.  He could understand doing it for a               
 dwelling, which is likely to be occupied, or a building that may be           
 unlikely to be occupied but that is, in fact.  "A school is what we           
 were using as an example," he said.  "So, those two, because they             
 have serious risks to people, make some sense to me.  Raising to              
 this level shooting at a shed doesn't seem to make sense."                    
 MR. ARMSTRONG informed members that the sponsor had talked with the           
 Department of Law before the hearing and was amenable to the                  
 department's suggested amendment to remove that portion.                      
 CHAIRMAN GREEN asked whether that was removal of "a risk of damage            
 to property or."                                                              
 Number 1566                                                                   
 REPRESENTATIVE CROFT offered Amendment 1 to CSSB 70(JUD):  "To                
 eliminate from line 13 on page 2, `a risk of damage to' and on                
 [line] 14, `property or'.  So, it would take out that, and it would           
 read, `with reckless disregard for a risk of physical injury to a             
 REPRESENTATIVE BERKOWITZ objected for discussion purposes, saying             
 they were still left with the same problem.  He stated, "Since                
 you've written in the disjunctive `risk of damage to property or              
 [a] risk of physical injury,' that's the same language that's                 
 contained in Section 3."  He stated his understanding that the                
 Department of Law wanted to remove the entire subsection (ii).                
 MS. CARPENETI responded, "That's what we would like to see removed.           
 There is a difference, in that under (3), we're talking about a               
 building.  And ... that's paragraph (3) on line 10.  And then                 
 paragraph (3) on line 17, which is a different statute, which is              
 misconduct involving weapons, I believe, in the fifth degree, ...             
 there is a difference in that the one on line 17 is not necessarily           
 at a building.  So, I think we could live with the amendment that             
 was suggested by Representative Croft, although our original                  
 position was we would like to see all of (ii) out."                           
 REPRESENTATIVE BERKOWITZ responded, "I think what that does is                
 confuse it, because it's different.  If the building is occupied              
 and there's no risk of physical injury, you're shooting at one end            
 of the building and someone's at the other end, that's still swept            
 up under the B felony."  He said there is an internal contradiction           
 because that case is somehow viewed as the same as someone in a               
 room being shot at.  He stated, "And if I were to be in the                   
 situation where I was having to defend somebody, that sort of                 
 discrepancy is something you might seize on and invite litigation,            
 whereas if the building's occupied, ... it doesn't matter.  If we             
 just do away with (ii), we have no problems whatsoever."                      
 Number 1704                                                                   
 REPRESENTATIVE NORMAN ROKEBERG said this really hits home to him,             
 given 30 years in commercial real estate.                                     
 CHAIRMAN GREEN said, "You don't like your buildings shot at."                 
 REPRESENTATIVE ROKEBERG agreed; it is a real risk and happens                 
 frequently.  He believes there should be a presumption that a                 
 building is occupied, even at night; therefore, the "second                   
 portion" has some merit.  Clearly, there is a problem in terms of             
 equal protection and conflict that should be corrected.  But the              
 language is clear that in (i), the building is occupied, and he               
 believes (ii) puts the burden on somebody to make sure it isn't               
 occupied.  "So, I think that is absolutely necessary," he stated.             
 "But I'm not sure if it corrects this other problem that we need to           
 correct.  Maybe we need to remove the misdemeanor from the books;             
 I'm not sure how that works under the Title 11-type of structure              
 you want to do."  He said this bill is meaningful and applies to              
 our everyday lives.                                                           
 REPRESENTATIVE CROFT suggested perhaps the problem was (i), not               
 (ii).  It seemed to make sense to have a presumption in shooting at           
 a dwelling that people are there; therefore, it is in the same                
 category as a crime against a person, as is shooting at a building            
 with reckless disregard of physical injury to a person.  He                   
 suggested (i) creates a sort of weird strict liability.  A person             
 could have no reason to know; it would therefore not be reckless              
 conduct.  For example, a person could have checked but someone                
 could be hiding in the cellar.  This language doesn't say "you knew           
 it was occupied" or "you should have known it was occupied."  While           
 it is not good conduct to shoot at buildings, the question is when            
 it occurs.  Although big thefts, for example, become felonies, the            
 more typical distinction is whether there is a risk to a person.              
 Removing the property language and strict liability would set up a            
 two-tier system:  "a dwelling, we're going to presume it's                    
 occupied; a building, if you should have known it was occupied."              
 Number 1864                                                                   
 REPRESENTATIVE PORTER said he'd prefer to eliminate (i) rather than           
 (ii).  There are situations where law enforcement officers and                
 others have a legitimate right to use a firearm.  For example, an             
 officer might shoot at and hit a person, yet have committed a                 
 felony by shooting in the direction of a building.  He didn't                 
 believe that was the intent.  He suggested they qualify who the               
 person is.                                                                    
 CHAIRMAN GREEN asked:  If they eliminate (i) and retain (ii), do              
 they still have the conflict with lines 17 through 19?                        
 REPRESENTATIVE BERKOWITZ responded, "I think you do if we keep the            
 property section in, but I don't believe we do if you take the                
 property section out."                                                        
 REPRESENTATIVE CROFT pointed out that it is a property phrase.                
 REPRESENTATIVE PORTER said that would be his recommendation.  "And            
 I still would like to have some qualifier on the person," he added.           
 REPRESENTATIVE BERKOWITZ suggested in a shoot-out situation, the              
 "law attaching to justification would attach."                                
 REPRESENTATIVE PORTER said he would not be comfortable with that.             
 MS. CARPENETI responded to the proposal to eliminate (i).  She                
 understood from the sponsor that the purpose is to criminalize at             
 a higher level drive-by shootings of buildings.  However, if a                
 person shot at a store in the middle of the night, it would be hard           
 for the state to prove there was a substantial risk that someone              
 was inside and that the person disregarded the risk, because there            
 isn't a big risk of people being inside a building.                           
 REPRESENTATIVE PORTER suggested in that case it was property                  
 damage, and why were they talking about a felony?                             
 Number 1982                                                                   
 REPRESENTATIVE ROKEBERG indicated a common phenomenon in urban                
 areas is a bullet striking a glass wall of an office building in              
 which the glass sections are worth $700 to $1,500 each.  However,             
 that was not the point here, and he agreed with Representative                
 Porter, he added.                                                             
 REPRESENTATIVE PORTER said the vast majority of those cases involve           
 a slingshot or pellet gun, which are not firearms.                            
 REPRESENTATIVE BERKOWITZ pointed out that those are also felonies.            
 REPRESENTATIVE ROKEBERG suggested firing a firearm within a                   
 building should perhaps be addressed.  In addition, in canvassing             
 middle-class neighborhoods in Anchorage, he had seen residences               
 with bullet holes in the front doors, which he believed were from             
 drive-by shootings.                                                           
 REPRESENTATIVE CROFT recapped Amendment 1, saying it "was to take             
 property damage out of (ii)."                                                 
 CHAIRMAN GREEN noted that it deletes, "a risk of damage [to]                  
 property or".                                                                 
 REPRESENTATIVE BERKOWITZ withdrew his objection.                              
 CHAIRMAN GREEN announced that there being no further objection,               
 Amendment 1 was adopted.                                                      
 REPRESENTATIVE BERKOWITZ offered Amendment 2, to withdraw                     
 subsection (A)(i)."                                                           
 Number 2081                                                                   
 REPRESENTATIVE PORTER asked the Department of Law to assist him               
 with a friendly amendment that would put some qualifying term in              
 front of "person" on line 14, to eliminate someone who was                    
 "lawfully bought and paid for."  He explained, "In other words, I             
 am shooting at this person with absolute reckless disregard for his           
 safety, because I want to shoot him and I have a legal right to               
 shoot him.  I don't want to be guilty of a felony."                           
 MS. CARPENETI said she would be happy to provide that.  It would              
 take a little thought to say it clearly.  She offered to bring it             
 in that afternoon or the following day.                                       
 REPRESENTATIVE CROFT suggested, "discharge a firearm without legal            
 justification at or in the direction of a ...."                               
 MS. CARPENETI acknowledged that and said, "But I don't know that              
 that would also qualify dwelling; ... and I would have to think               
 about whether you want to qualify dwelling with that."                        
 CHAIRMAN GREEN asked whether there was an objection to Amendment 2,           
 to withdraw (i).  There being none, Amendment 2 was adopted.                  
 REPRESENTATIVE PORTER said he still had the same question.  He                
 referred to page 2, line 15, which says, "(B) a dwelling," and                
 asked:  If they left (B) in place, what about a legitimate shooting           
 that happens to be in that general direction?                                 
 REPRESENTATIVE BERKOWITZ suggested if they put in some legal                  
 justification on line 10 to that effect, it would also cover a                
 REPRESENTATIVE CROFT restated his prior suggestion, specifying:               
 "Line 10, between `firearm' and `at', putting in the words,                   
 `without legal justification', to read:  `discharges a firearm                
 without legal justification at or in the direction of ....'"                  
 CHAIRMAN GREEN said that takes care of both.                                  
 REPRESENTATIVE BERKOWITZ stated, "a building with reckless                    
 disregard for a risk of physical injury to a person.  You don't               
 need `dwelling' then.  Well, it could be a tent or something."                
 REPRESENTATIVE CROFT said it establishes that for a dwelling,                 
 reckless disregard is presumed.  "If it's a building, you have to             
 show something else," he added.                                               
 CHAIRMAN GREEN indicated it was a great idea.  He asked whether               
 there was any objection.  There being none, Amendment 3 was                   
 REPRESENTATIVE CROFT made a motion to move CSSB 70(JUD), as                   
 amended, from committee with individual recommendations and                   
 attached fiscal notes.  There being no objection, HCS CSSB 70(JUD)            
 moved out of the House Judiciary Standing Committee.                          
 Number 2259                                                                   
 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee               
 meeting at 3:17 p.m.                                                          

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