Legislature(1997 - 1998)
05/01/1997 01:07 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 date." - 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 SHORT TITLE: CIVIL LIABILITY FOR IMPROPER LITIGATION 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 SHORT TITLE: HAZARDOUS CHEMICALS, MATERIALS, AND WASTE 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; AM:LEMAN 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 date." 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.) CSSB 39(JUD) - HAZARDOUS CHEMICALS, MATERIALS, AND WASTE 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 reasons." 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 in?" 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 level. 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 response. 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 information. 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 notes. REPRESENTATIVE CROFT and REPRESENTATIVE BERKOWITZ objected. 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 maintained. 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 cylinder." 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 pounds. 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- sustaining." 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 property." 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 practical." 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 curfew. 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 effective? 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 difference." 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 person'." 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 dwelling. 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 adopted. 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. ADJOURNMENT Number 2259 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee meeting at 3:17 p.m.