Legislature(2003 - 2004)

04/09/2003 01:40 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                         April 9, 2003                                                                                          
                           1:40 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Lesil McGuire, Chair                                                                                             
Representative Tom Anderson, Vice Chair                                                                                         
Representative Jim Holm                                                                                                         
Representative Dan Ogg                                                                                                          
Representative Ralph Samuels                                                                                                    
Representative Les Gara                                                                                                         
Representative Max Gruenberg                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 249                                                                                                              
"An Act  relating to actions  involving monopolies  and restraint                                                               
of trade; and providing for an effective date."                                                                                 
                                                                                                                                
     - MOVED CSHB 249(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 164                                                                                                              
"An Act  relating to the  state's sovereign immunity  for certain                                                               
actions  regarding injury,  illness, or  death of  state-employed                                                               
seamen and  to workers' compensation  coverage for  those seamen;                                                               
and providing for an effective date."                                                                                           
                                                                                                                                
     - MOVED HB 164 OUT OF COMMITTEE                                                                                            
                                                                                                                                
HOUSE BILL NO. 92                                                                                                               
"An  Act  relating  to  reports  by members  of  the  clergy  and                                                               
custodians  of  clerical records  who  have  reasonable cause  to                                                               
suspect  that a  child has  suffered harm  as a  result of  child                                                               
abuse or neglect."                                                                                                              
                                                                                                                                
     - MOVED CSHB 92(JUD) OUT OF COMMITTEE                                                                                      
                                                                                                                                
HOUSE BILL NO. 24                                                                                                               
"An  Act  relating   to  intergovernmental  agreements  regarding                                                               
management of fish or game."                                                                                                    
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
PREVIOUS ACTION                                                                                                               
                                                                                                                                
BILL: HB 249                                                                                                                  
SHORT TITLE:RESTRAINT OF TRADE: FEES AND COSTS                                                                                  
SPONSOR(S): REPRESENTATIVE(S)MCGUIRE                                                                                            
                                                                                                                                
Jrn-Date   Jrn-Page                     Action                                                                                  
04/04/03     0787       (H)        READ THE FIRST TIME -                                                                        
                                   REFERRALS                                                                                    
04/04/03     0787       (H)        JUD                                                                                          
04/09/03                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
                                                                                                                                
BILL: HB 164                                                                                                                  
SHORT TITLE:CLAIMS BY STATE-EMPLOYED SEAMEN                                                                                     
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR                                                                                      
                                                                                                                                
Jrn-Date   Jrn-Page                     Action                                                                                  
03/05/03     0435       (H)        READ THE FIRST TIME -                                                                        
                                   REFERRALS                                                                                    
03/05/03     0435       (H)        L&C, JUD, FIN                                                                                
03/05/03     0435       (H)        FN1: ZERO(ADM)                                                                               
03/05/03     0435       (H)        GOVERNOR'S TRANSMITTAL LETTER                                                                
03/14/03                (H)        L&C AT 3:15 PM CAPITOL 17                                                                    
03/14/03                (H)        <Bill Hearing Postponed>                                                                     
03/31/03                (H)        L&C AT 3:15 PM CAPITOL 17                                                                    
03/31/03                (H)        Moved Out of Committee                                                                       
                                   MINUTE(L&C)                                                                                  
04/02/03     0732       (H)        L&C RPT 1DP 5NR                                                                              
04/02/03     0732       (H)        DP: ROKEBERG; NR: LYNN,                                                                      
                                   GATTO,                                                                                       
04/02/03     0732       (H)        CRAWFORD, GUTTENBERG,                                                                        
                                   ANDERSON                                                                                     
04/02/03     0733       (H)        FN1: ZERO(ADM)                                                                               
04/02/03     0733       (H)        FN2: (LWF)                                                                                   
04/02/03                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
04/02/03                (H)        Scheduled But Not Heard                                                                      
04/07/03                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
04/07/03                (H)        Heard & Held                                                                                 
                                   MINUTE(JUD)                                                                                  
04/09/03                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
                                                                                                                                
BILL: HB 92                                                                                                                   
SHORT TITLE:CLERGY TO REPORT CHILD ABUSE                                                                                        
SPONSOR(S): REPRESENTATIVE(S)LYNN                                                                                               
                                                                                                                                
Jrn-Date   Jrn-Page                     Action                                                                                  
02/12/03     0186       (H)        READ THE FIRST TIME -                                                                        
                                   REFERRALS                                                                                    
02/12/03     0186       (H)        STA, HES                                                                                     
02/19/03     0257       (H)        COSPONSOR(S): KERTTULA                                                                       
03/06/03                (H)        STA AT 8:00 AM CAPITOL 102                                                                   
03/06/03                (H)        Heard & Held                                                                                 
03/06/03                (H)        MINUTE(STA)                                                                                  
03/18/03                (H)        STA AT 8:00 AM CAPITOL 102                                                                   
03/18/03                (H)        Moved CSHB 92(STA) Out of                                                                    
                                   Committee                                                                                    
                                   MINUTE(STA)                                                                                  
03/24/03     0622       (H)        JUD REPLACES HES REFERRAL                                                                    
03/26/03     0633       (H)        STA RPT CS(STA) NT 5DP 1NR                                                                   
                                   1AM                                                                                          
03/26/03     0633       (H)        DP: GRUENBERG, SEATON, HOLM,                                                                 
                                   LYNN,                                                                                        
03/26/03     0633       (H)        DAHLSTROM; NR: WEYHRAUCH; AM:                                                                
                                   BERKOWITZ                                                                                    
03/26/03     0633       (H)        FN1: ZERO(HSS)                                                                               
03/26/03     0633       (H)        FN2: ZERO(LAW)                                                                               
03/26/03     0633       (H)        REFERRED TO JUDICIARY                                                                        
04/02/03                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
04/02/03                (H)        Heard & Held                                                                                 
                                   MINUTE(JUD)                                                                                  
04/07/03                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
04/07/03                (H)        <Bill Hearing Postponed to                                                                   
                                   Wed. 4/9/3>                                                                                  
04/09/03                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
JEFFREY M. FELDMAN, Attorney                                                                                                    
Feldman & Orlansky                                                                                                              
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Assisted with the presentation of HB 249                                                                   
and responded to questions.                                                                                                     
                                                                                                                                
TOM BRIGGS, Director                                                                                                            
Marine Operations                                                                                                               
Central Office                                                                                                                  
Alaska Marine Highway System (AMHS)                                                                                             
Department of Transportation & Public Facilities (DOT&PF)                                                                       
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Testified in support of HB 164 and                                                                         
responded to questions.                                                                                                         
                                                                                                                                
J. LYNN MELIN, Port Captain                                                                                                     
Central Offices                                                                                                                 
Alaska Marine Highway System                                                                                                    
Department of Transportation & Public Facilities (DOT&PF)                                                                       
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Provided comments during discussion of HB
164.                                                                                                                            
                                                                                                                                
JAMES P. JACOBSEN, Attorney at Law,                                                                                             
Beard Stacey Trueb & Jacobsen, LLP                                                                                              
Seattle, Washington                                                                                                             
POSITION STATEMENT:  Provided comments during discussion of HB
164.                                                                                                                            
                                                                                                                                
SUSAN COX, Chief Assistant Attorney General                                                                                     
Civil Division (Juneau)                                                                                                         
Department of Law (DOL)                                                                                                         
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Responded to questions during discussion of                                                                
HB 164.                                                                                                                         
                                                                                                                                
KEVIN JARDELL, Assistant Commissioner                                                                                           
Office of the Commissioner                                                                                                      
Department of Administration                                                                                                    
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Provided comments during discussion of HB
164.                                                                                                                            
                                                                                                                                
RICHARD BLOCK, Representational Lobbyist                                                                                        
for Christian Science Committee on Publication for Alaska                                                                       
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified during the hearing on HB 92.                                                                     
                                                                                                                                
FLOYD SMITH, Consultant                                                                                                         
Alaska District Council of the Assemblies of God                                                                                
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Provided comments during discussion of HB
92.                                                                                                                             
                                                                                                                                
REPRESENTATIVE BOB LYNN                                                                                                         
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Sponsor of HB 92.                                                                                          
                                                                                                                                
WILLIAM MOFFATT, Staff                                                                                                          
to Representative Bob Lynn                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Provided a  comment during the hearing on HB
92.                                                                                                                             
                                                                                                                                
CHIP WAGONER, Lobbyist                                                                                                          
for the Alaska Catholic Conference                                                                                              
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Provided a  comment during the hearing on HB
92.                                                                                                                             
                                                                                                                                
JUSTIN ROBERTS, Staff                                                                                                           
to Representative Max Gruenberg                                                                                                 
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Provided a  comment during the hearing on HB
92.                                                                                                                             
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 03-34, SIDE A                                                                                                            
Number 0001                                                                                                                     
                                                                                                                                
CHAIR  LESIL   McGUIRE  called   the  House   Judiciary  Standing                                                             
Committee  meeting  to  order  at   1:40  p.m.    Representatives                                                               
McGuire, Holm, Ogg, Samuels, Gara,  and Gruenberg were present at                                                               
the  call  to order.    Representative  Anderson arrived  as  the                                                               
meeting was in progress.                                                                                                        
                                                                                                                                
HB 249 - RESTRAINT OF TRADE: FEES AND COSTS                                                                                   
                                                                                                                                
Number 0043                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be  HOUSE BILL  NO. 249,  "An Act  relating to  actions involving                                                               
monopolies  and   restraint  of  trade;  and   providing  for  an                                                               
effective date."                                                                                                                
                                                                                                                                
CHAIR McGUIRE  posited that  HB 249  is a  clarifying bill.   She                                                               
relayed  that Civil  Rule  82(a)  of the  Alaska  Rules of  Civil                                                               
Procedure says,  "Except as otherwise  provided by law  or agreed                                                               
to by the parties, the prevailing  party in a civil case shall be                                                               
awarded attorney's fees  calculated under this rule."   Thus, she                                                               
surmised, the philosophy  has been that the  prevailing party may                                                               
recover its  fees, adding that  [HB 249] will make  it absolutely                                                               
clear  that  this  same  policy   also  applies  with  regard  to                                                               
antitrust cases.  She mentioned  that the legislature has not yet                                                               
spoken clearly  on this issue; under  current statutory language,                                                               
there  is  only  reference   to  successful  plaintiff  recovery.                                                               
Therefore, HB  249 is intended  to clarify, and  state expressly,                                                               
that the successful antitrust defendant  has the right to recover                                                               
partial attorney fees.                                                                                                          
                                                                                                                                
CHAIR  McGUIRE  noted that  the  legislature  has already  spoken                                                               
similarly  in the  area of  unfair trade  practices and  consumer                                                               
protection -  specifically in AS  45.50.537(b) - which  states in                                                               
part  that, "a  prevailing  defendant shall  be awarded  attorney                                                               
fees and costs as provided by  court rule."  She pointed out that                                                               
HB  249  has  an  immediate effective  date,  and  remarked  that                                                               
although  she  generally  tries  to  "stay  away  from  immediate                                                               
effective  dates,"   when  clarifying  an  existing   policy  she                                                               
believes  it  is appropriate  to  have  an [immediate]  effective                                                               
date.   "If  we  are  going to  speak,  we  should speak  firmly,                                                               
clearly, and immediately," she added.                                                                                           
                                                                                                                                
Number 0322                                                                                                                     
                                                                                                                                
JEFFREY M.  FELDMAN, Attorney, Feldman &  Orlansky, remarked that                                                               
the legislature,  in AS 45.50.576,  has already stated that  if a                                                               
plaintiff  proves that  an antitrust  violation  is wilful,  then                                                               
that  prevailing  plaintiff  can recover  actual  attorney  fees,                                                               
rather  than  just  the  partial  fees that  [Rule  82]  gives  a                                                               
prevailing party.   He opined that a commonsense  reading of that                                                               
statute would lead a person to  conclude that the general rules -                                                               
the  ordinary  rules  of  Rule  82 -  would  apply  to  either  a                                                               
prevailing  plaintiff  or  a prevailing  defendant,  and  that  a                                                               
plaintiff that proves a wilful  violation collects full fees.  He                                                               
noted,  however, that  the courts  are not  of one  mind on  this                                                               
issue;  he said  that  some  judges would  read  that statute  as                                                               
displacing Rule 82 entirely, concluding  that because the statute                                                               
only awards  prevailing plaintiffs  fees, it is  thereby intended                                                               
to  deprive   prevailing  defendants   of  any   [attorney  fees]                                                               
reimbursement.   He opined  that a reading  of that  statute does                                                               
not logically lead to such a conclusion.                                                                                        
                                                                                                                                
MR. FELDMAN  posited that  the purpose  of HB  249 is  to clarify                                                               
that in  enacting the aforementioned provision  giving prevailing                                                               
plaintiffs full  [attorney] fees, the legislature  did not intend                                                               
to strip  other prevailing parties  of partial  fee entitlements.                                                               
He  relayed that  he  is  currently "defending  one  of the  fish                                                               
processors  in   the  antitrust   case  that's   presently  being                                                               
litigated  in Anchorage."   He  said  that "this  issue" arose  a                                                               
couple  of years  ago when  the processors  prevailed on  summary                                                               
judgment and  the trial court gave  [his party] a signal  that it                                                               
would likely read the current statute  as displacing Rule 82.  He                                                               
noted that  this issue  was never resolved  because the  grant of                                                               
summary  judgment in  favor  of the  processors  was reversed  on                                                               
appeal, and  so his  party has  been "sent back  for trial."   He                                                               
said  that if  his party  were to  ultimately prevail,  under the                                                               
trial court's  current reading of  the statute, his  client would                                                               
not be  entitled to recover  any attorney  fees.  He  opined that                                                               
this would be contrary to what was intended by the statute.                                                                     
                                                                                                                                
MR. FELDMAN,  in closing, said that  it is not his  intention, in                                                               
proposing the  concept of HB 249,  to change the law,  but rather                                                               
to simply clarify [legislative intent]  and spare his clients the                                                               
burden  of  having to  go  through  another two-year  process  of                                                               
appeal.                                                                                                                         
                                                                                                                                
Number 0625                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG suggested  that  rather  than amend  AS                                                               
45.50.576 by adding  a subsection (c) - as is  proposed by HB 249                                                               
- it might  be better to amend (a)(1) of  that statute by adding,                                                               
after "person",  the phrase "the  prevailing party shall  also be                                                               
awarded  the cost  of the  suit plus  reasonable [attorney]  fees                                                               
according to court rule".                                                                                                       
                                                                                                                                
MR. FELDMAN  acknowledged that doing  such would be  an alternate                                                               
way of approaching  "this problem."  He  mentioned, however, that                                                               
that would  have the  effect of  "deleting, from  [AS 45.50.576],                                                               
the ...  provision that would  grant an award of  full reasonable                                                               
fees to prevailing plaintiffs for wilful violations."                                                                           
                                                                                                                                
REPRESENTATIVE  GRUENBERG surmised,  then, that  the court  reads                                                               
"reasonable  [attorney]  fees"  as  "full  reasonable  [attorney]                                                               
fees."                                                                                                                          
                                                                                                                                
MR. FELDMAN indicated that that is correct.                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  Mr.  Feldman whether  it is  his                                                               
intention, with HB 249, to  have the courts award full reasonable                                                               
attorney fees to defendants as well.                                                                                            
                                                                                                                                
MR. FELDMAN said no, just Rule 82 fees.                                                                                         
                                                                                                                                
REPRESENTATIVE    GRUENBERG    suggested,     then,    that    AS                                                               
45.50.576(a)(1)  be amended  to say,  "including full  reasonable                                                               
[attorney]  fees".   "Let's  add  the word  'full'  in there,  so                                                               
they'll understand what we're doing," he remarked.                                                                              
                                                                                                                                
MR. FELDMAN  said, "That may  be granting  us more than  what I'm                                                               
asking for."                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  indicated  that   it  would  not,  and                                                               
clarified that in addition to the  change proposed by HB 249, his                                                               
latest suggestion  would be to  also amend AS  45.50.576(a)(1) by                                                               
adding the word "full" before "reasonable".                                                                                     
                                                                                                                                
MR. FELDMAN, in response, said his  only goal is to ensure that a                                                               
prevailing defendant is given Rule 82 fees.                                                                                     
                                                                                                                                
Number 0847                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  opined  that  [Representative  Gruenberg's]                                                               
suggestion  would be  creating mischief  with the  statutes.   He                                                               
elaborated:                                                                                                                     
                                                                                                                                
     There are  a number  of provisions  where the  State of                                                                    
     Alaska   has  decided   that  certain   cases  are   so                                                                    
     important,  and the  attorney general's  office doesn't                                                                    
     have the presence to file  these cases, that we want to                                                                    
     encourage people  to be able  to find  private counsel.                                                                    
     And,  so,   in  the   consumer  protection   area,  the                                                                    
     antitrust  area, there  are  provisions  in there  that                                                                    
     provide for  full [attorney]  fees in  recognition that                                                                    
     the State of  Alaska doesn't have the  presence to take                                                                    
     all of these  cases that ... people would  need them to                                                                    
     take.   And sometimes  we refer  to the  full [attorney                                                                    
     fees]  provision   as  a  reasonable   [attorney  fees]                                                                    
     provision in  the statute, [and]  sometimes we  use the                                                                    
     word "full".                                                                                                               
                                                                                                                                
     My worry  is, by changing "reasonable"  to "full", that                                                                    
     might imply,  in all the  other places in  the statutes                                                                    
     where we  use the term "reasonable",  that that doesn't                                                                    
     mean full.   And the term  "reasonable [attorney] fees"                                                                    
     has  always  been  interpreted by  the  court  to  mean                                                                    
     "full" - they  understand what it means -  I just don't                                                                    
     think we need to ...  change the wording of the statute                                                                    
     at all.   This follows  the federal  antitrust statute,                                                                    
     which does the same thing.                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG  offered his  understanding that  at the                                                               
federal  level, since  this is  the same  as federal  law, it  is                                                               
interpreted as "full".                                                                                                          
                                                                                                                                
REPRESENTATIVE GARA affirmed that.   Indicating he'd discussed it                                                               
earlier that  day with Mr.  Feldman, he then brought  up removing                                                               
the immediate  effective date.   Representative Gara said  he had                                                               
no  problem  with  the  substance  of the  bill  and  was  pretty                                                               
confident that it  accurately stated existing law and  the way it                                                               
should have  been interpreted  by the trial  court in  this case.                                                               
He said  he wasn't 100  percent comfortable, however,  because he                                                               
hadn't  read every  single case;  he suggested  the courts  would                                                               
have more  insight in that area.   He asked whether  adopting the                                                               
bill without  Section 3 would have  an impact as this  case wends                                                               
it way through  the courts, and whether the courts  would look at                                                               
"our act  in clarifying existing  law as evidence of  the meaning                                                               
of existing law."                                                                                                               
                                                                                                                                
MR.  FELDMAN  responded  that  if Section  3  were  removed,  the                                                               
consequence for the currently pending  Bristol Bay antitrust case                                                               
would be that the proposed  legislation would become effective 90                                                               
days after enactment;  given how protracted the  case has become,                                                               
it is possible  that the bill could be enacted  without Section 3                                                               
and it still would apply to  this case by the time final judgment                                                               
is entered.   He expressed doubt, therefore,  that the immediate-                                                               
effective-date provision  controls whether  this law is  going to                                                               
apply to  this case.   He also said  he believes the  court would                                                               
still be obliged  to consider the enactment "as  an indication of                                                               
how  the statute,  even before  the enactment,  should have  been                                                               
considered."  He explained:                                                                                                     
                                                                                                                                
     If ...  the legislature says, "This  is a clarification                                                                    
     and  this is  what the  prior statute  was intended  to                                                                    
     mean," I would like to  think that the court would give                                                                    
     that  enactment appropriate  deference and  would weigh                                                                    
     it and  consider it.   Now, courts  do lots  of things,                                                                    
     and ...  we'd have to  wait and  find out. ...  I'll be                                                                    
     candid and  say that  part of  my motivation  for being                                                                    
     here is just to avoid  the uncertainty and the cost and                                                                    
     the delay of  running that risk.  But  ... I understand                                                                    
     your concern about  it. ... If I thought  that this was                                                                    
     a substantive  change in the  law, it would  trouble me                                                                    
     more.   But I really  just think ... that  it clarifies                                                                    
     and makes explicit what I  think was obviously intended                                                                    
     when the statute was enacted originally.                                                                                   
                                                                                                                                
Number 1128                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA said he thought  he largely agreed and didn't                                                               
believe it  was a  substantive change  in the  law.   However, he                                                               
acknowledged the  need to analyze  all the  cases in order  to be                                                               
able to  speak for sure.   With regard to legislative  intent, he                                                               
offered his belief  that this bill is consistent  with the intent                                                               
of  the statutes,  "even before  it gets  changed."   He informed                                                               
members that  at some point during  the hearing he would  move to                                                               
delete Section 3.                                                                                                               
                                                                                                                                
REPRESENTATIVE OGG  asked whether  Mr. Feldman  was aware  of any                                                               
antitrust  cases  in which  the  defendants  prevailed in  Alaska                                                               
under Rule 82, and what the results were.                                                                                       
                                                                                                                                
MR. FELDMAN answered that he knew  of no other private case tried                                                               
under  the antitrust  statute, and  thought this  was the  first;                                                               
thus there is no precedent to draw on.  He added:                                                                               
                                                                                                                                
     The  trial court  actually gave  us a  ruling ...  that                                                                    
     said, "I  read the statute  as precluding Rule  82 fees                                                                    
     to  prevailing defendants."   That  issue  was part  of                                                                    
     what was  appealed to the  supreme court.   But because                                                                    
     the  supreme court  ... reversed  the grant  of summary                                                                    
     judgment and sent us back  for trial, the supreme court                                                                    
     never addressed  the issue of  whether the  trial court                                                                    
     was  right  or  wrong  on   that  ruling.    But  Judge                                                                    
     Michalski certainly  has told  us what  his perspective                                                                    
     is ... on  the issue, and ... I assume  he'll give me a                                                                    
     fair chance to  try and change his mind; if  we win, we                                                                    
     have that issue  presented all over again.   But ... he                                                                    
     read  the statute,  and ...  I respect  him completely.                                                                    
     And ... he's entitled to his  view. ... I think it does                                                                    
     violence to  the words in  the statute, though,  in the                                                                    
     intent.                                                                                                                    
                                                                                                                                
Number 1251                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGG asked what the  argument would be on the other                                                               
side of the existing case.                                                                                                      
                                                                                                                                
MR. FELDMAN replied:                                                                                                            
                                                                                                                                
     Well,  I  know  what  their argument  is  because  they                                                                    
     advanced it ... when we had  this issue crop up back in                                                                    
     1999,  ... the  first  time. ...  Rule  82 talks  about                                                                    
     "except as  otherwise provided by  law.  Their  view is                                                                    
     that when the legislature  speaks to [attorney] fees at                                                                    
     all, it  displaces Rule  82.  And  the only  thing that                                                                    
     thereby becomes  operative is what the  legislature has                                                                    
     said, which,  I supposed,  ... if  that were  the rule,                                                                    
     the legislature ought  to keep in mind that  if it ever                                                                    
     says anything  about [attorney] fees, it  ought to make                                                                    
     sure it  says it completely and  entirely, because it's                                                                    
     effectively displacing Rule 82.                                                                                            
                                                                                                                                
     Now, I'm  not sure that  that's a sensible  reading ...                                                                    
     of the  law - and  of the rule,  for that matter  - but                                                                    
     ... they  would say that because  the antitrust statute                                                                    
     only spoke  to full fees for  prevailing plaintiffs, it                                                                    
     thereby displaced  everything else.  ... It  depends on                                                                    
     one's view, I suppose, of  the intent of the statute as                                                                    
     to  whether  that's true  or  not.   We  couldn't  find                                                                    
     anything in  the history of the  statute that supported                                                                    
     that [view].                                                                                                               
                                                                                                                                
CHAIR McGUIRE  asked whether anyone  else wished to  testify; she                                                               
then closed public testimony.                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG, noting that  [Mr. Feldman] was speaking                                                               
on behalf  of at least one  of the defendants, asked  whether the                                                               
plaintiffs had been notified.   He recalled that when legislation                                                               
involves  litigation,  usually  the  policy has  been  to  notify                                                               
everyone.                                                                                                                       
                                                                                                                                
CHAIR  McGUIRE offered  her  belief that  most  bills before  the                                                               
House  Judiciary Standing  Committee  affect  litigation in  some                                                               
way.   She announced that her  position is to provide  five days'                                                               
notice  on  every  bill, and  that  the  legislative  information                                                               
offices  (LIOs)  are  available.    She  said  this  bill  is  no                                                               
different from any  other, and that there is no  intent to either                                                               
exclude or include anyone.                                                                                                      
                                                                                                                                
MR. FELDMAN  added that although he  has a role as  legal counsel                                                               
for one  of the  parties in  the case, this  is a  little outside                                                               
those   activities;  he   hadn't  coordinated   with  the   other                                                               
defendants  and didn't  believe  the other  defendants knew  that                                                               
he'd  sought  this correction.    He  remarked, "We  handled  the                                                               
appeal back  in 1999 and, frankly,  it always just kind  of stuck                                                               
in  my craw  that we  were having  to litigate  that issue."   He                                                               
indicated  that after  realizing that  another way  to deal  with                                                               
this was to clarify the law, he'd begun the attempt.                                                                            
                                                                                                                                
Number 1412                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE announced  that the  hearing  on HB  249 would  be                                                               
recessed in order to take up HB  164.  [The hearing on HB 249 was                                                               
recessed until later in the meeting.]                                                                                           
                                                                                                                                
HB 164 - CLAIMS BY STATE-EMPLOYED SEAMEN                                                                                      
                                                                                                                                
Number 1423                                                                                                                     
                                                                                                                                
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE BILL  NO. 164,  "An Act relating  to the  state's sovereign                                                               
immunity for certain actions regarding  injury, illness, or death                                                               
of state-employed  seamen and  to workers'  compensation coverage                                                               
for those seamen; and providing for an effective date."                                                                         
                                                                                                                                
Number 1509                                                                                                                     
                                                                                                                                
TOM BRIGGS,  Director, Marine Operations, Central  Office, Alaska                                                               
Marine  Highway System  (AMHS),  Department  of Transportation  &                                                               
Public Facilities  (DOT&PF), said that  the AMHS supports  HB 164                                                               
because  it feels  that  the  bill benefits  both  the state  and                                                               
state-employed  seamen.    He  offered  that  the  Jones  Act  is                                                               
intended  to compensate  seamen  for illness  or  injury on  long                                                               
voyages away  from home,  and to  protect them  from the  risk of                                                               
abandonment.   He  opined, however,  that AMHS  employees do  not                                                               
face those same  risks, since typical AMHS voyages  last only one                                                               
or two weeks and employees are never too far from home.                                                                         
                                                                                                                                
MR. BRIGGS remarked HB 164 will  have a fiscal impact on the AMHS                                                               
because  there are  considerable  general  fund costs  associated                                                               
with the  fact that  the Jones  Act is  the exclusive  remedy for                                                               
AMHS employees.   For example, the cost to the  AMHS for unearned                                                               
wages is  approximately a quarter  of million dollars.   He noted                                                               
that  the  provision  in  the  union  contract  that  allows  for                                                               
unearned wages  to the  exclusion of annual  leave or  sick leave                                                               
was put there after the Alaska  Supreme Court case, Dale Brown v.                                                             
State & Div.  of Marine Highway Systems.  He  opined that passage                                                             
of HB  164 will  increase the  state's chances  of being  able to                                                               
successfully  negotiate  the  removal   of  this  unearned  wages                                                               
provision.                                                                                                                      
                                                                                                                                
MR. BRIGGS pointed out that  in 1983, the representative from the                                                               
Inlandboatmen's Union of  the Pacific (IBU) worked  very hard, on                                                               
behalf of state-employed  seamen, to get the  contract changed to                                                               
allow for a  workers' compensation remedy instead of  a Jones Act                                                               
remedy.  On the issue of  whether the Jones Act provides a better                                                               
remedy,  he relayed  that  he has  been told  of  cases in  which                                                               
injured   seamen  have   become  destitute   while  waiting   for                                                               
resolution of their  personal injury claims under  the Jones Act.                                                               
He said  that the  AMHS is  satisfied that  workers' compensation                                                               
will  adequately   address  maintenance  and  cure   issues,  and                                                               
indicated  that having  a workers'  compensation system  in place                                                               
will prevent frivolous lawsuits.                                                                                                
                                                                                                                                
MR.  BRIGGS  said  the  AMHS   believes  that  seriously  injured                                                               
employees  will have  adequate  occupational disability  coverage                                                               
via  the  Public  Employees' Retirement  System  (PERS)  and  the                                                               
Supplemental  Benefits System  (SBS).   He mentioned  that state-                                                               
employed seamen are provided with  retirement benefits and health                                                               
care benefits,  and opined  that those  seamen are  not typically                                                               
exposed to hazardous  working conditions.  He  offered his belief                                                               
that  state-employed  seamen face  risks  no  greater than  those                                                               
faced by  laborers, heavy equipment operators,  and public safety                                                               
personnel  employed by  the  state.   He said  it  is the  AMHS's                                                               
contention that  passage of HB  164 will give adequate  remedy to                                                               
its  employees,  and  asked  that  the  bill  be  passed  out  of                                                               
committee.                                                                                                                      
                                                                                                                                
Number 1784                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  said he  is troubled  by the  assertion that                                                               
AMHS  employees file  more  claims than  other  classes of  state                                                               
employees, because  the statistics  provided at the  last hearing                                                               
on  HB 164  compared AMHS  employees,  who almost  all do  manual                                                               
labor, with  the types  of state employees  that don't  do manual                                                               
labor.  He asked whether  there are any statistics comparing AMHS                                                               
employees  with other  state  employees that  do  as much  manual                                                               
labor as those in the AMHS.                                                                                                     
                                                                                                                                
MR. BRIGGS  said he did  not have  such statistics at  this time.                                                               
In response  to further  questions, he  said that  although state                                                               
employees who do manual labor might  have a higher rate of claims                                                               
than  was  illustrated  in   the  aforementioned  statistics  for                                                               
departments other than the AMHS, he  did not think it would be as                                                               
much as two and  three times higher as is the  case with the AMHS                                                               
employees.  He  mentioned that when a seaman is  sick or injured,                                                               
in addition to  paying that person unearned wages,  there is also                                                               
the  cost of  paying  wages -  sometimes overtime  wages  - to  a                                                               
replacement  employee and  providing transportation  to and  from                                                               
the vessel.   He said he suspected that  if state-employed seamen                                                               
had to  use sick  leave when ill  rather than  receiving unearned                                                               
wages as they do now, there would be fewer claims filed.                                                                        
                                                                                                                                
REPRESENTATIVE GARA asked Mr. Briggs  whether, if given the time,                                                               
he could  provide a comparison  using a  group of workers  who do                                                               
manual  labor  similar to  what  is  performed by  state-employed                                                               
seamen.  He added that he would deem such a comparison relevant.                                                                
                                                                                                                                
MR. BRIGGS  said he could, adding  that he might also  be able to                                                               
provide information from the Washington state ferry system.                                                                     
                                                                                                                                
REPRESENTATIVE  GARA,  turning   to  the  governor's  transmittal                                                               
letter  and its  assertion  that maritime  law generates  greater                                                               
compensation awards,  said he is  troubled by the idea  that they                                                               
should change  the law  to reduce  the compensation  that injured                                                               
workers get as a way to balance  the budget.  He asked Mr. Briggs                                                               
to comment.                                                                                                                     
                                                                                                                                
MR.  BRIGGS said  he  agreed:   "You don't  want  to balance  the                                                               
budget on the  back of the workers."  But  that's not the intent,                                                               
he argued.   "We believe, and  I think this can  be substantiated                                                               
by  talking to  some of  the  seamen themselves,  that there  are                                                               
instances, more regular instances, where  a person is deprived of                                                               
adequate compensation under the Jones  Act remedy than they would                                                               
have been under the [workers'] compensation," he stated.                                                                        
                                                                                                                                
REPRESENTATIVE  GARA said  that according  to his  understanding,                                                               
Mr.  Tseu,  Regional  Director,  Alaska  Region,  Inlandboatmen's                                                               
Union of the  Pacific (IBU) expressed concerns about  HB 164 when                                                               
he  testified  before  the  House  Labor  and  Commerce  Standing                                                               
Committee.                                                                                                                      
                                                                                                                                
Number 2016                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE announced  that the  hearing  on HB  164 would  be                                                               
recessed in order  to again take up  HB 249.  [The  hearing on HB
164 was recessed until later in the meeting.]                                                                                   
                                                                                                                                
The committee took an at-ease from 2:19 p.m. to 2:20 p.m.                                                                       
                                                                                                                                
HB 249 - RESTRAINT OF TRADE: FEES AND COSTS                                                                                   
                                                                                                                                
Number 2031                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  announced that  the  committee  would resume  the                                                               
hearing  on HOUSE  BILL  NO.  249, "An  Act  relating to  actions                                                               
involving monopolies  and restraint  of trade; and  providing for                                                               
an effective date."                                                                                                             
                                                                                                                                
Number 2070                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  moved that the committee  adopt Amendment                                                               
1, which read [original punctuation provided]:                                                                                  
                                                                                                                                
     Page 1, Line 9:                                                                                                            
     Delete "this section"                                                                                                      
     Insert "AS 45.50.562 - 45.50.570"                                                                                          
                                                                                                                                
REPRESENTATIVE GARA objected for discussion purposes.                                                                           
                                                                                                                                
CHAIR McGUIRE  explained that  the purpose of  Amendment 1  is to                                                               
clarify that it's  a suit under the  [entire applicable] section.                                                               
The  current  legislation  only references  AS  45.50.576,  which                                                               
refers to suits  by persons injured and treble  damages.  Without                                                               
this  amendment,  "the meat"  of  the  suit isn't  obtained,  she                                                               
remarked.                                                                                                                       
                                                                                                                                
REPRESENTATIVE GARA withdrew his objection.                                                                                     
                                                                                                                                
Number 2101                                                                                                                     
                                                                                                                                
There being no further objection, Amendment 1 was adopted.                                                                      
                                                                                                                                
Number 2117                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  moved that the committee  adopt Amendment                                                               
2, which read [original punctuation provided]:                                                                                  
                                                                                                                                
     Page 1, Line 10:                                                                                                           
     After "costs", Delete "and"                                                                                                
     After "costs", Insert "of the suit, including"                                                                             
                                                                                                                                
REPRESENTATIVE GARA  objected in order  to read Amendment 2.   He                                                               
then withdrew his objection.                                                                                                    
                                                                                                                                
Number 2134                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  noted  that there  were  no  further  objections.                                                               
Therefore, Amendment 2 was adopted.                                                                                             
                                                                                                                                
Number 2174                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  moved that the committee  adopt Amendment 3,                                                               
which read [original punctuation provided]:                                                                                     
                                                                                                                                
     Delete Section 3.                                                                                                          
                                                                                                                                
CHAIR McGUIRE objected.                                                                                                         
                                                                                                                                
REPRESENTATIVE  GARA  pointed  out   that  virtually  every  time                                                               
legislation impacting legal rights is  enacted, it applies to all                                                               
causes  of  action  that  accrue  after  the  date  of  the  act.                                                               
Therefore,  [new  legislation doesn't  impact  the  rules or  the                                                               
outcome of] pending  lawsuits.  The arguments  presented in favor                                                               
of HB 249 are good ones, he  said, adding that he agreed with the                                                               
substance behind  HB 249.   Furthermore, he anticipated  that the                                                               
courts will  end up agreeing  that the state's  interpretation is                                                               
the  correct interpretation.    He offered  his  belief that  the                                                               
antitrust case  [referred to by  Jeffrey M. Feldman in  the first                                                               
part of  the meeting]  should run  its course.   He noted  that a                                                               
superior court's ruling on [attorney]  fees can be appealed.  The                                                               
Alaska Supreme  Court will,  he predicted,  address the  issue of                                                               
[attorney]  fees  on  appeal,  and will  likely  issue  a  ruling                                                               
favoring the defendants in this case.   He said he didn't believe                                                               
the legislature  should make  it a  practice to  pass legislation                                                               
that would impact pending litigation.                                                                                           
                                                                                                                                
REPRESENTATIVE  GARA  then  acknowledged   the  weakness  of  his                                                               
argument:     this  legislation  doesn't  change   existing  law.                                                               
However,  he noted  that he  isn't the  authority on  the matter;                                                               
rather, the  supreme court is.   Although he said that  he hasn't                                                               
read all  of the relevant  cases, he did  believe that he  has an                                                               
understanding  of the  intent  behind existing  law.   Again,  he                                                               
relayed  his belief  that ultimately  the [Alaska  Supreme Court]                                                               
will agree  that Civil Rule  82(a) of  the Alaska Rules  of Civil                                                               
Procedure  ("Rule 82")  applies when  a defendant  prevails under                                                               
antitrust statutes.   Representative Gara said  he didn't believe                                                               
it looks good for the  legislature to pass legislation that could                                                               
be perceived  as favoring one side  in a [pending case]  - a very                                                               
contentious case.                                                                                                               
                                                                                                                                
Number 2303                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA   explained  that   with  the   adoption  of                                                               
Amendment  3, the  normal effective  date  provision will  apply.                                                               
Therefore, the  legislation will  be applicable a  certain number                                                               
of days  after passage and will  be applicable to all  new causes                                                               
of action.   The courts should  be left to make  the decision, he                                                               
opined.                                                                                                                         
                                                                                                                                
REPRESENTATIVE SAMUELS  asked whether the elimination  of Section                                                               
3 would also impact the case.                                                                                                   
                                                                                                                                
REPRESENTATIVE GARA said he believes  that the courts will always                                                               
look  to   legislative  history  for  legislative   intent.    He                                                               
indicated  that he  didn't feel  comfortable impacting  a pending                                                               
case.                                                                                                                           
                                                                                                                                
CHAIR  McGUIRE reiterated  her  earlier  statement regarding  the                                                               
need  to  speak  clearly,  effectively, and  immediately  on  the                                                               
subject.                                                                                                                        
                                                                                                                                
TAPE 03-34, SIDE B                                                                                                            
Number 2389                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  relayed  his  belief that  this  is  a                                                               
different issue.  Putting the  effective date aside, the question                                                               
[the  committee   wants]  to  address  is   another  clause,  the                                                               
applicability section,  that should  be in  the legislation.   If                                                               
the legislation is left as  it is, Representative Gruenberg said,                                                               
he thought  the legislation would  be interpreted as  applying to                                                               
all  cases  previously, currently,  or  prospectively.   Upon  an                                                               
indication  [from  Chair McGuire]  that  such  is not  the  case,                                                               
Representative Gruenberg  said that [the language]  is ambiguous.                                                               
Therefore,  the  legislation   should  include  an  applicability                                                               
clause regardless of the effective date.                                                                                        
                                                                                                                                
REPRESENTATIVE OGG relayed his belief  that [this legislation] is                                                               
stepping  out in  such  a  way that  [the  legislature] could  be                                                               
perceived  as acting  as a  court.   When an  act is  passed, the                                                               
court  looks for  legislative intent  from  the legislature  that                                                               
passed it.   Therefore, the court would be looking  back in time,                                                               
to the legislature  that passed the antitrust statute,  to try to                                                               
find  legislative intent.   Representative  Ogg  said [it  seems]                                                               
that by looking  back in the future and specifying  the intent of                                                               
a  past  legislature,  [this  legislature  would  be]  trying  to                                                               
influence something that "we" really  don't know.  He relayed his                                                               
belief that  this isn't the  proper purview for  the legislature,                                                               
to  be stepping  in [on  a current,  very heated  case].   If the                                                               
desire  really   is  to   clarify  the   intent  of   a  previous                                                               
legislature,  then  an  applicability  clause  is  necessary,  he                                                               
opined.                                                                                                                         
                                                                                                                                
Number 2253                                                                                                                     
                                                                                                                                
JEFFREY  M.  FELDMAN, Attorney,  Feldman  &  Orlansky, noted  his                                                               
belief that this  legislation is a clarification  of current law,                                                               
not  a change  in  the law.    If  one believes  that  this is  a                                                               
clarification, then  the question  becomes why wouldn't  one want                                                               
it  to apply  to  all  cases, including  those  currently in  the                                                               
system.  He said that a  prospective effective date is even worse                                                               
because it suggests  that the legislation is changing  the law in                                                               
that  this provision  will only  apply prospectively  and thereby                                                               
imply  that something  different  must be  applied  in the  past.                                                               
Therefore,  he  stressed  that   he  didn't  want  a  prospective                                                               
effective date.                                                                                                                 
                                                                                                                                
REPRESENTATIVE HOLM said  that although he isn't  an attorney, he                                                               
did know  that it's  the legislature's job  and purview  to write                                                               
law.   Furthermore,  it's not  the legislature's  place to  allow                                                               
interpretation by  courts to indicate how  the legislature writes                                                               
law.  Moreover,  no legislature can bind  another legislature and                                                               
thus if  a legislature  chooses to  say that  an existing  law is                                                               
inappropriate, it's  inherent upon that legislature  to change it                                                               
if the legislature  so chooses.  He said, "I  don't think that we                                                               
can't make those  choices, in good faith."  He  then said that if                                                               
this   legislature  feels   that  this   legislation  should   be                                                               
retroactive, then it should be so.                                                                                              
                                                                                                                                
Number 2172                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  requested that  the committee  members place                                                               
themselves in the  shoes of someone involved in  a lawsuit that's                                                               
important to  them.  He  also requested that the  members imagine                                                               
the  opposite; a  case in  which an  individual felt  that he/she                                                               
would prevail, and  the other side felt the same  but went to the                                                               
legislature  and requested  clarity  of the  law  such that  that                                                               
side's  view was  reflected in  the  law.   The latter  situation                                                               
would be  troubling, he said.   Representative Gara said  that it                                                               
would  look poorly  upon the  legislature  to issue  a rule  that                                                               
would be applied in a pending lawsuit.                                                                                          
                                                                                                                                
REPRESENTATIVE  GARA, after  noting  his support  of the  policy,                                                               
said that  the legislature can  pass a  law and specify  that the                                                               
legislation will clarify the  intent behind previous legislation.                                                               
Because there  are rules for  interpreting statutes, he  said, he                                                               
wasn't concerned that passing HB 249  would send a message to the                                                               
courts that the  previous law was different.  A  letter of intent                                                               
can  be  included  with  this  legislation  to  specify  that  it                                                               
clarifies  the law,  and all  the  comments on  the record  would                                                               
support that as well.                                                                                                           
                                                                                                                                
CHAIR  McGUIRE   noted  that  she  respectfully   disagreed  with                                                               
Representative  Gara.    She informed  the  committee  that  when                                                               
someone requests that she introduce  legislation, she won't do so                                                               
if  she doesn't  think it's  the right  thing.   She relayed  her                                                               
belief that [HB 249] is the  right thing because she thinks it is                                                               
the law  and is  consistent with  Rule 82  and with  fairness and                                                               
equity.   Furthermore, if  the legislature  speaks, she  said, it                                                               
should  speak clearly.   She  said, "My  concern is  that if  you                                                               
speak  halfway, even  though you  have  all kinds  of intent  and                                                               
don't have an  immediate effective date, that  may be interpreted                                                               
as saying something as well."                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked  if   the  committee  wanted  to                                                               
include an applicability clause.  He  said that it seems that the                                                               
committee  can  either choose  to  make  [HB 249]  applicable  to                                                               
pending cases  or not.  However,  it seems that if  the committee                                                               
chooses to say  nothing and the language  remains ambiguous, that                                                               
may be  poor public policy.   Representative  Gruenberg suggested                                                               
that the committee address [whether  to make HB 249 applicable to                                                               
pending cases or not].                                                                                                          
                                                                                                                                
CHAIR McGUIRE announced that the  bill will move out of committee                                                               
today.    She reminded  committee  members  that Amendment  3  is                                                               
before the committee, and said she is maintaining her objection.                                                                
                                                                                                                                
Number 1907                                                                                                                     
                                                                                                                                
A roll call  vote was taken.  Representatives  Gara and Gruenberg                                                               
voted in  favor of Amendment  3.  Representatives  Anderson, Ogg,                                                               
Holm,  Samuels,  and  McGuire   voted  against  it.    Therefore,                                                               
Amendment 3 failed by a vote of 2-5.                                                                                            
                                                                                                                                
Number 1898                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GRUENBERG  moved   that   the  committee   adopt                                                               
Conceptual Amendment 4, which would add an applicability clause.                                                                
                                                                                                                                
The committee took an at-ease from 2:42 p.m. to 2:43 p.m.                                                                       
                                                                                                                                
REPRESENTATIVE   GRUENBERG  specified   that  conceptually,   the                                                               
applicability  clause  would  say,  "This act  applies  to  cases                                                               
pending  at trial  or on  appeal on  the effective  date of  this                                                               
act."                                                                                                                           
                                                                                                                                
CHAIR McGUIRE objected.                                                                                                         
                                                                                                                                
Number 1844                                                                                                                     
                                                                                                                                
A roll  call vote was  taken.  Representative Gruenberg  voted in                                                               
favor of Conceptual Amendment 4.   Representatives Anderson, Ogg,                                                               
Holm, Samuels,  Gara, and McGuire  voted against it.   Therefore,                                                               
Conceptual Amendment 4 failed by a vote of 1-6.                                                                                 
                                                                                                                                
Number 1835                                                                                                                     
                                                                                                                                
CHAIR McGUIRE, after  remarking that the current title  of HB 249                                                               
is too  broad, made a  motion to  adopt Amendment 5,  which reads                                                               
[original punctuation provided]:                                                                                                
                                                                                                                                
     Amend title to read:                                                                                                       
                                                                                                                                
     "An  act relating  to  the award  of  attorney fees  in                                                                    
     civil actions  brought under monopoly and  restraint of                                                                    
     trade statutes; and providing for and effective date."                                                                     
                                                                                                                                
Number 1821                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG objected, and said:                                                                                    
                                                                                                                                
     I think  it's still too  broad.   And I would  move the                                                                    
     following amendment  to ... Amendment  [5].   After the                                                                    
     word  "fees", add  the following,  "to defendant  under                                                                    
     court  rule".   The title  would  then read:   "An  act                                                                    
     relating to  the award  of attorney  fees" --  I should                                                                    
     say, "and  costs" -  "costs and  attorneys fees".   I'm                                                                    
     going  to say,  "to the  award of  costs and  attorneys                                                                    
     fees to  defendants under court  rule in  civil actions                                                                    
     brought under monopoly ..."                                                                                                
                                                                                                                                
CHAIR  McGUIRE said:    "I  have no  objection  to your  friendly                                                               
amendment.    With  that,  do  you  maintain  your  objection  to                                                               
Amendment 5?"                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG said no.                                                                                               
                                                                                                                                
Number 1793                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE asked  if  there were  any  further objections  to                                                               
adopting Amendment 5  [as amended].  There  being none, Amendment                                                               
5 [as amended] was adopted.                                                                                                     
                                                                                                                                
Number 1782                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  moved to report  HB 249, as  amended, out                                                               
of   committee   with    individual   recommendations   and   the                                                               
accompanying zero  fiscal note.   There being no  objection, CSHB
249(JUD)  was   reported  from   the  House   Judiciary  Standing                                                               
Committee.                                                                                                                      
                                                                                                                                
HB 164 - CLAIMS BY STATE-EMPLOYED SEAMEN                                                                                      
                                                                                                                                
Number 1757                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  announced that  the  committee  would resume  the                                                               
hearing on  HOUSE BILL NO. 164,  "An Act relating to  the state's                                                               
sovereign   immunity  for   certain  actions   regarding  injury,                                                               
illness,  or  death  of state-employed  seamen  and  to  workers'                                                               
compensation  coverage for  those  seamen; and  providing for  an                                                               
effective date."                                                                                                                
                                                                                                                                
Number 1720                                                                                                                     
                                                                                                                                
J.  LYNN  MELIN, Port  Captain,  Central  Offices, Alaska  Marine                                                               
Highway System, Department of  Transportation & Public Facilities                                                               
(DOT&PF), provided the following testimony:                                                                                     
                                                                                                                                
     I have  20 years in  the industry, approximately  11 of                                                                    
     them offshore,  sailing American ships,  foreign ports.                                                                    
     I'm  a graduate  of the  United States  Merchant Marine                                                                    
     Academy  [USMMA]; I  hold an  "Unlimited Masters/Oceans                                                                    
     license -  all tonnage,  all oceans."   In  addition, I                                                                    
     have an  MBA [Master  of Business  Administration] from                                                                    
     the University of Maryland. ...  My purpose is twofold.                                                                    
     One as  a sailor.   And one because of  my observations                                                                    
     as  port captain  within [the  AMHS].   I've been  here                                                                    
     three  and  a  half  years; every  injury  and  illness                                                                    
     report that occurs aboard our  vessels crosses my desk,                                                                    
     and  I read  it.   I  also have  some participation  in                                                                    
     pulling  documents  together,   finding  out  what  the                                                                    
     injury was  - illness is pretty  self-explanatory - and                                                                    
     we try to find the bottom line on what happened.                                                                           
                                                                                                                                
     I want  to state straight up  ... that I am  where I am                                                                    
     because  of  the  Jones  Act.   The  Jones  Act  has  a                                                                    
     definite place in our country.  ... It's main intention                                                                    
     with regard to personnel, in  my opinion, is that it is                                                                    
     for  seamen who  go offshore.   If  a seaman  goes from                                                                    
     Baltimore  to Poland,  or wherever  he may  go, and  he                                                                    
     breaks his leg, and he gets  off the ship in Poland, it                                                                    
     is the obligation of the  employer to bring him back to                                                                    
     the states.  It is  also the obligation of the employer                                                                    
     to maintain his  wages until his articles  are closed -                                                                    
     that ship returns back to the [U.S.].                                                                                      
                                                                                                                                
     I  believe  that  that definition  of  taking  care  of                                                                    
     seamen  is   appropriate;  I  think  it's   where  it's                                                                    
     supposed to be.  That seaman  has no other remedy.  His                                                                    
     only  other remedy,  other than  the unearned  wages or                                                                    
     the wages that he earns 'til  the ship gets to the U.S.                                                                    
     port,  is to  sue.   The  company is  not obligated  to                                                                    
     provide him any type of  compensation, any type of sick                                                                    
     leave,  after that  voyage ends.   And  I think  that's                                                                    
     where the  Jones Act does  play a  role.  What  it does                                                                    
     is, it gives that seaman the  ability to go back to the                                                                    
     company and say, "Because  you are unseaworthy, because                                                                    
     you have  had problems with your  work environment, you                                                                    
     owe my for my broken leg; it was your fault."                                                                              
                                                                                                                                
Number 1640                                                                                                                     
                                                                                                                                
     And that's where  the seaman's remedy is:   he sues, he                                                                    
     goes to  court, he gets  his remedy  and he gets  it up                                                                    
     front.   The problem  with this remedy  is that  ... he                                                                    
     doesn't  have any  other compensation  coming in  while                                                                    
     the  court case  is going  through the  courts. ...  He                                                                    
     doesn't  have any  unemployment;  he  doesn't have  any                                                                    
     [workers'  compensation].   He may  have some  benefits                                                                    
     from a  union, but that is  not a guarantee.   His only                                                                    
     compensation comes  at the conclusion of  that lawsuit,                                                                    
     which  is  why, when  you  do  have injuries  that  are                                                                    
     substantial, that  affect the man's or  woman's working                                                                    
     career,  then  those  lawsuits should  be  substantial.                                                                    
     They should  be able to  help him get through  with his                                                                    
     life,  especially  if  his  injury  was  caused  by  an                                                                    
     unseaworthy  condition.   That is  my understanding  of                                                                    
     the intent  of seamen's  injuries and  illnesses within                                                                    
     the Jones Act.                                                                                                             
                                                                                                                                
MS. MELIN continued:                                                                                                            
                                                                                                                                
     Now,   within  [the   AMHS],   there   ...  are   other                                                                    
     compensations  that  [AMHS]  employees receive.    They                                                                    
     receive sick  leave -  they earn it,  it's part  of ...                                                                    
     our  contractual obligation  -  and  they also  receive                                                                    
     unearned  wages to  the  end  of the  voyage.  So if  a                                                                    
     seamen, in  our case,  broke a  leg on  day one  of his                                                                    
     voyage, he  would get  wages until  the voyage  ended -                                                                    
     which in  most cases  in the Southeast  are one  to two                                                                    
     weeks, and they go longer  up in the Southwest system -                                                                    
     ... [and] because it's a  broken leg, he's probably out                                                                    
     for five or  six weeks or whatever the case  may be, he                                                                    
     then would  be entitled to  the sick leave that  he has                                                                    
     earned  as  employee  to  the State  of  Alaska.    The                                                                    
     question  is, ...  then is  he  entitled to  additional                                                                    
     compensation by suing the state  ... because he broke a                                                                    
     leg  [by doing]  ... whatever  [he was  doing when  it]                                                                    
     happened? ...                                                                                                              
                                                                                                                                
     The question  is:  Is it  not enough to say  that we do                                                                    
     take  care of  our  employees, that  we  do bring  sick                                                                    
     leave  into   effect,  [that]  we  do   want  to  bring                                                                    
     [workers'  compensation] into  effect?   We have  cases                                                                    
     within  [the   AMHS],  one  in  particular,   that  the                                                                    
     gentleman  was practically  destitute by  the time  his                                                                    
     case closed.  ... It took approximately  four years for                                                                    
     that case  to come  to a conclusion,  and he  was doing                                                                    
     nothing in  the meantime.   So, the question  is, where                                                                    
     is the  benefit?  I'm  not sure  that the right  to sue                                                                    
     the  employer  is  the  answer.    I  think  where  our                                                                    
     thoughts need  to be, is,  what does the person  need -                                                                    
     what   does  the   employee   need?     And   [workers'                                                                    
     compensation]  certainly seems  to  be  able to  handle                                                                    
     that.                                                                                                                      
                                                                                                                                
Number 1460                                                                                                                     
                                                                                                                                
MS. MELIN added:                                                                                                                
                                                                                                                                
     Now, ... what's the percentage  of major injury?  There                                                                    
     has been  one [case] since  I've been here -  I've been                                                                    
     here three and  a half years; I do not  know where that                                                                    
     [case] is.   There  have been a  couple that  have been                                                                    
     brought up to  me in the last ten years.   Are they the                                                                    
     exception?    The  answer  is  yes.   Do  we  have  the                                                                    
     individuals  onboard the  ships  that  have injuries  -                                                                    
     slips and falls,  sprain the wrists - get the  flu?  Do                                                                    
     they  need to  be entitled  to Jones  Act compensation?                                                                    
     I'm not  sure.   I think that  they can  be compensated                                                                    
     with  sick leave,  that they  can  be compensated  with                                                                    
     [workers' compensation], and that  we should look at it                                                                    
     that way.                                                                                                                  
                                                                                                                                
     Seamen  who go  offshore do  not  have sick  leave.   I                                                                    
     sailed 11  years offshore.  If  I broke my leg  the day                                                                    
     before the ship  got back to U.S. port, the  next day I                                                                    
     was done - I had no  compensation coming to me - unless                                                                    
     I sued the employer.  However,  if I was going away for                                                                    
     a three-month  trip, and I broke  my leg on day  two, I                                                                    
     would be  entitled to compensation  for the  next three                                                                    
     months.  That  would give me time to heal,  get back on                                                                    
     my feet and get back to  work.  And that is the intent:                                                                    
     for these people to get up,  get going, and get back to                                                                    
     work.                                                                                                                      
                                                                                                                                
Number 1372                                                                                                                     
                                                                                                                                
JAMES P. JACOBSEN, Attorney at Law, Beard Stacey Trueb &                                                                        
Jacobsen, LLP, offered the following testimony:                                                                                 
                                                                                                                                
     I  would  only  make  two  really  very  brief  points.                                                                    
     Number one  is [regarding] ... the  statistics that Mr.                                                                    
     Thompson  [Director,   Division  of   Risk  Management,                                                                    
     Department   of   Administration]   provided   to   the                                                                    
     committee  [on  4/7/03]:    I   think  there's  been  a                                                                    
     misunderstanding   between   the  committee   and   Mr.                                                                    
     Thompson  on those  statistics.   If  I understood  his                                                                    
     testimony, there  would have  been about 340  Jones Act                                                                    
     claims  in  the last  two  years,  and Ms.  Cox  [Chief                                                                    
     Assistant  Attorney General,  Civil Division  (Juneau),                                                                    
     Department of  Law (DOL)] testified there  are about 15                                                                    
     pending suits.                                                                                                             
                                                                                                                                
     It  occurs to  me that  what Mr.  Thompson stated  were                                                                    
     Jones  Act claims  were merely  reports of  accident or                                                                    
     injury on the ship, rather  than actual claims or cases                                                                    
     in which  monies were  paid to a  seaman pursuant  to a                                                                    
     legal judgment  or pursuant to a  settlement agreement.                                                                    
     I  would think  that  if  you focus  on  the number  of                                                                    
     claims where there was  a settlement agreement assigned                                                                    
     or a judgment  entered against the state,  it occurs to                                                                    
     me  that you  will  find that  probably  the amount  of                                                                    
     claims is  vastly diminished from what  was represented                                                                    
     in  the statistics.    And  I will  also  say that  the                                                                    
     [AMHS]  and [Ms.  Melin] can  testify to  this too  and                                                                    
     confirm this.                                                                                                              
                                                                                                                                
     The state  ferries are covered under  the international                                                                    
     safety  management  [ISM] code  and  they  must have  a                                                                    
     safety  management system  [SMS]  in place.   And  this                                                                    
     system has  applied to the  ferries for the  last three                                                                    
     or four  years, and it actually  requires the reporting                                                                    
     of  all accidents,  or injuries,  to the  management so                                                                    
     that they  can look into  it and  see how those  can be                                                                    
     avoided in  the future.   So, whether  or not  a seaman                                                                    
     intends to  file a Jones  Act claim against his  or her                                                                    
     employer, they  are still required,  under the  ISM and                                                                    
     SMS, to report  an accident so that  the management can                                                                    
     look into it.                                                                                                              
                                                                                                                                
Number 1270                                                                                                                     
                                                                                                                                
MR. JACOBSEN continued:                                                                                                         
                                                                                                                                
     The  second point  was  the  Director's [Mr.  Briggs's]                                                                    
     point about  paying unearned  wages to  the end  of the                                                                    
     voyage.   Changing this  to workers'  [compensation] is                                                                    
     not going to change the  liability at all to the [AMHS]                                                                    
     on  that because  sick leave  is, my  understanding is,                                                                    
     it's  an  unfunded  obligation in  that  when  a  state                                                                    
     employee retires, he  or she gives up  their sick leave                                                                    
     compensation.  And  it's a use-it-or-lose-it [benefit],                                                                    
     and, therefore,  rather than just  paying wages  to the                                                                    
     end of  the voyage  under the  union contract  ..., the                                                                    
     [AMHS] will  then be paying  sick leave for  those same                                                                    
     days, and  so it  won't make any  difference at  all, I                                                                    
     don't  think, based  on my  understanding, as  to what,                                                                    
     ultimately,  the  [AMHS]  will  end up  paying  when  a                                                                    
     worker has to get off  the vessel, whether they're sick                                                                    
     or whether they're injured.                                                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG  turned  to  page  1,  line  12,  which                                                               
deletes  the  phrase  "under  this  section".    He  said  he  is                                                               
reluctant to  remove that language.   He asked why  that language                                                               
should be eliminated.                                                                                                           
                                                                                                                                
Number 1124                                                                                                                     
                                                                                                                                
SUSAN  COX,  Chief  Assistant Attorney  General,  Civil  Division                                                               
(Juneau), Department  of Law (DOL), offered  two explanations for                                                               
the  deletion  of  that  phrase.   One,  it  clarifies  that  the                                                               
retentions  of  immunity  in  AS  09.50.250(1)-(5)  are  not  the                                                               
exclusive  expressions of  immunity in  statute.   Two, it  would                                                               
preclude  someone   from  making  the  argument   that  there  is                                                               
contradictory language elsewhere in statute.                                                                                    
                                                                                                                                
REPRESENTATIVE  GARA asked  whether the  administration would  be                                                               
amenable  to an  amendment  that would  allow  "both parties"  to                                                               
negotiate workers'  compensation into  the contract.   Under such                                                               
an  amendment,  if  the  parties don't  agree  to  have  workers'                                                               
compensation apply, the Jones Act would still apply.                                                                            
                                                                                                                                
MS. COX opined that the Alaska  Supreme Court case, Dale Brown v.                                                             
State  & div.  of Marine  Highway Systems,  determined that  such                                                             
provisions are void in the face of federal law.                                                                                 
                                                                                                                                
REPRESENTATIVE  GARA  observed,  however,  that  the  Dale  Brown                                                             
decision  simply says  that absent  an expression  of legislative                                                               
intent,  the  Jones Act  applies  and  that the  legislature  can                                                               
change  that situation  if it  so chooses.   The  legislature, he                                                               
surmised,  could  make a  statutory  change  to the  effect  that                                                               
workers' compensation laws apply if the parties agree to it.                                                                    
                                                                                                                                
MS.  COX  acknowledged that  such  an  option,  if placed  in  AS                                                               
09.50.250, might be possible.   In response to further questions,                                                               
she  mentioned  that  although railroad  workers  throughout  the                                                               
country  are   ordinarily  covered  by  the   Federal  Employers'                                                               
Liability Act  (FELA) - which  is incorporated by  reference into                                                               
the Jones Act  - Alaska Railroad employees are  not; instead, the                                                               
Alaska workers' compensation law covers those employees.                                                                        
                                                                                                                                
REPRESENTATIVE GARA asked  whether there are any  other seamen in                                                               
Alaska who are not subject to the Jones Act.                                                                                    
                                                                                                                                
MS. COX  said no; in Alaska,  the people who actually  qualify as                                                               
seamen under the  Jones Act have only that as  their remedy.  She                                                               
mentioned, however, that  there are "seamen in  other states, who                                                               
are  employed by  other states,"  who have  workers' compensation                                                               
remedies instead of Jones Act remedies.                                                                                         
                                                                                                                                
Number 0565                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  mentioned  that there  are  historical                                                               
reasons, having  to do  with protecting  wards of  the admiralty,                                                               
for the development of the Jones Act.                                                                                           
                                                                                                                                
MS.  COX agreed,  but mentioned  that the  working conditions  of                                                               
state-employed  seamen today  are quite  different, as  are their                                                               
benefits.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  GRUENBERG spoke  in favor  of the  aforementioned                                                               
suggested  amendment  regarding  allowing  parties  to  negotiate                                                               
which  remedy will  apply.   He asked  whether other  states have                                                               
"allowed this to be the subject of collective bargaining."                                                                      
                                                                                                                                
MS. COX mentioned  that the dissenting opinion in  the Dale Brown                                                             
decision said that the majority  had ignored the labor law across                                                               
the country and that this really  was an area in which the unions                                                               
could collectively  bargain.   She noted,  however, that  she did                                                               
not know  whether there were  any case citations  associated with                                                               
that  dissenting   opinion,  or   whether  the  subject   of  the                                                               
collective bargaining spoken of  related to workers' compensation                                                               
remedies versus Jones Act and other maritime remedies.                                                                          
                                                                                                                                
REPRESENTATIVE    GRUENBERG    suggested   that    perhaps    the                                                               
aforementioned amendment could be  crafted to include the phrase,                                                               
"to the extent allowed by federal law".                                                                                         
                                                                                                                                
MS. COX  pointed out,  however, that  the point of  HB 164  is to                                                               
say, "we're not  doing it under vestiges of federal  law."  Thus,                                                               
"we'd have to be doing it  through the vehicle of AS 09.50.250 in                                                               
order for this  to be operative," she added,  because, outside of                                                               
the  state's  waiver of  sovereign  immunity,  the state  is  not                                                               
allowed to bargain "this kind of substitution" with its unions.                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG  surmised,  then,  that  "if  we  waive                                                               
sovereign immunity, we could."                                                                                                  
                                                                                                                                
MS. COX replied, "That's the theory."                                                                                           
                                                                                                                                
Number 0305                                                                                                                     
                                                                                                                                
KEVIN   JARDELL,   Assistant    Commissioner,   Office   of   the                                                               
Commissioner,  Department   of  Administration,  said   that  the                                                               
administration   would  be   opposed  to   Representative  Gara's                                                               
suggestion.   He said  the administration  views the  decision to                                                               
have workers'  compensation apply  to state-employed seamen  as a                                                               
policy  call,  the  same  type   of  policy  call  made  for  law                                                               
enforcement officers who  also work in dangerous  situations.  He                                                               
added that  if workers' compensation  is not  fairly compensating                                                               
state employees, then  that would be a different  policy call and                                                               
a  different  bill.     He  opined,  however,  that   it  is  the                                                               
administration's position that employees are  "well taken care of                                                               
and  well   cared  for"  under  workers'   compensation,  and  is                                                               
therefore  the  policy that  the  administration  has elected  to                                                               
pursue.  "We  think it's better for the vast  majority if not all                                                               
of the  employees; we  think it's better  for [DOT&PF];  we think                                                               
it's better for the state," he  added.  He also opined that there                                                               
is still the  question [even with a statutory  change] of whether                                                               
a union can bargain away its members' "rights of litigation."                                                                   
                                                                                                                                
MR. JARDELL,  in response  to a  question, said  that he  did not                                                               
have  any case  law  to  support his  position  on the  suggested                                                               
change; rather,  it is  just his instinct  that the  courts would                                                               
still  reject a  collective bargaining  agreement on  this issue.                                                               
He  said it  is the  administration's strong  belief that  policy                                                               
dictates that workers' compensation is  the better remedy for the                                                               
employees.                                                                                                                      
                                                                                                                                
REPRESENTATIVE GARA indicated that  although he respects that the                                                               
administration is making a policy  decision, he can't accept that                                                               
it is  the administration's  position to  decide which  remedy is                                                               
better  for  workers.    "I'd  like  to  hear  from  the  workers                                                               
themselves," he qualified.   With regard to the  issue of whether                                                               
his suggested change would present a legal problem, he opined:                                                                  
                                                                                                                                
     If the  Alaska Supreme Court  says, "The Jones  Act can                                                                    
     apply,"  and if  the  Alaska Supreme  Court says,  "The                                                                    
     workers'  [compensation]  law   can  apply,"  then  the                                                                    
     Alaska Supreme  Court would  say that  you can  come up                                                                    
     with a  contract that lets  either of those  laws, that                                                                    
     they've said  can apply,  apply.   So, if  they've said                                                                    
     that either  of those can  apply, they would  respect a                                                                    
     contract  that picked  which one  of those  laws should                                                                    
     apply.   There's no doubt in  my mind.  If  you come up                                                                    
     with  legal precedent  to  support  your position,  I'd                                                                    
     like  to see  it, but  I  just can't  accept the  legal                                                                    
     interpretation  that  you've  [offered as  a  basis  to                                                                    
     reject  this  amendment.   If  it's  researched, I  can                                                                    
     accept  it; if  it's instinctive,  I can't  accept it.]                                                                    
     [The  preceding bracketed  portion was  taken from  the                                                                    
     Gavel to Gavel recording on the Internet.]                                                                                 
                                                                                                                                
TAPE 03-35, SIDE A                                                                                                            
Number 0041                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  made a motion to  adopt Conceptual Amendment                                                               
1, which read [original punctuation provided]:                                                                                  
                                                                                                                                
     -  Allow parties  to negotiate  to be  covered by  Wkrs                                                                    
     comp law.  But don't mandate it.                                                                                           
                                                                                                                                
     With no agreement, the Jones Act will apply.                                                                               
                                                                                                                                
Number 0052                                                                                                                     
                                                                                                                                
CHAIR McGUIRE objected.                                                                                                         
                                                                                                                                
MR. JARDELL  reiterated that  he doesn't  know whether  the court                                                               
would  view that  as  an individual  right and  one  that can  be                                                               
waived by the union.   He said that "it" causes  him concern.  He                                                               
relayed that there are five  separate bargaining units that "deal                                                               
with" seamen.   He said, "Bargaining  over, 'We will give  you 50                                                               
more   dollars  if   you   waive  your   rights   to  Jones   Act                                                               
compensation,'   isn't  the   type  of   policy  call   that  the                                                               
administration believes is  a good one."  He again  said that the                                                               
administration  believes that  workers'  compensation provides  a                                                               
fair remedy,  adding that  if such  is not  the case,  either the                                                               
legislature or  the governor should  revisit the issue  to ensure                                                               
that it does provide an adequate remedy for all state employees.                                                                
                                                                                                                                
REPRESENTATIVE  GARA  opined  that  contrary to  how  such  might                                                               
sound,  the latter  portion  of Mr.  Jardell's  statement is  not                                                               
really  an  open  invitation  to   change  the  current  workers'                                                               
compensation laws.  Speaking in  favor of Conceptual Amendment 1,                                                               
he said:                                                                                                                        
                                                                                                                                
     Here's  what  I  know  is  clear.    If  you  suffer  a                                                                    
     substantial   injury,    you're   entitled    to   full                                                                    
     compensation  under the  Jones Act.   If  you suffer  a                                                                    
     substantial  injury, you're  entitled  to partial  wage                                                                    
     compensation  and then  very  partial compensation  for                                                                    
     physical  injury  under   the  workers'  [compensation]                                                                    
     statute.  That  is the reason for the  statement by the                                                                    
     administration  in  its  letter  recommending  that  we                                                                    
     adopt  this  bill change;  it's  the  reason for  their                                                                    
     statement  that under  existing law,  the existing  law                                                                    
     results  in  ...  "significantly  greater  compensation                                                                    
     awards to injured  employees."  It's just  not an issue                                                                    
     that's debatable.                                                                                                          
                                                                                                                                
     That's   why   many   employers   like   the   workers'                                                                    
     [compensation]  system   better,  because   awards  are                                                                    
     limited.     There   are  benefits   to  the   workers'                                                                    
     [compensation]  system;  there  are detriments  to  the                                                                    
     workers' [compensation] system.   The detriment is that                                                                    
     your whole  body is valued  at $170,000  and, depending                                                                    
     on  whether you've  lost 100  percent of  your body  or                                                                    
     just 50  percent or  25 percent, you  get a  portion of                                                                    
     that $177,000 to  compensate you for your  loss of your                                                                    
     ability to  fish, your  loss of  your ability  to hike,                                                                    
     your  loss of  your ability  to swing  a child  around,                                                                    
     your  loss of  your ability  to do  anything with  your                                                                    
     family.   It values  all of that,  apart from  the wage                                                                    
     claim and  the medical  costs claim, all  of that  at a                                                                    
     portion of $170,000.                                                                                                       
                                                                                                                                
Number 0365                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA added:                                                                                                      
                                                                                                                                
     I think  there are  serious problems with  the workers'                                                                    
     compensation  statute.   I  think that  it  is a  false                                                                    
     choice   to  say,   "Put   workers   in  the   workers'                                                                    
     [compensation]   statute   now,  which   pays   limited                                                                    
     compensation,  and then  later on  consider whether  or                                                                    
     not  you want  to change  it."   We know  what kind  of                                                                    
     system this  bill is asking  us to  put workers in.   I                                                                    
     think it  presents problems.   I don't want  to balance                                                                    
     the budget  on the  backs of workers;  I don't  want to                                                                    
     balance  the budget  by taking  away workers  rights to                                                                    
     receive  full  compensation.    For  now,  I  ...  will                                                                    
     entertain comments  from the unions that  are affected,                                                                    
     before this reaches the floor.                                                                                             
                                                                                                                                
     But I think it is fair  to give people the choice which                                                                    
     law they want  to apply:  the law that  saves the state                                                                    
     money,  which is  the workers'  [compensation] law  - I                                                                    
     think  we all  agree that  the workers'  [compensation]                                                                    
     law would save  the state money; that's  the reason for                                                                    
     the bill - or existing law.   Let it be negotiated.  We                                                                    
     know in  the '80s, the workers'  [compensation] law was                                                                    
     at the  point and  compensated at  a level  that unions                                                                    
     didn't mind  being covered by  it.  I suspect  that the                                                                    
     workers' [compensation] law is  far less generous today                                                                    
     than  it  was 15  years  ago  from the  perspective  of                                                                    
     injured workers.  They might  want to negotiate it into                                                                    
     their contracts; they might not.                                                                                           
                                                                                                                                
     But I  think we  should leave  it as  a matter  of free                                                                    
     choice.  I  don't think if workers don't  want this law                                                                    
     to apply  to them, I  don't think we should  force them                                                                    
     to have  a law they don't  want to apply, to  apply.  I                                                                    
     don't  think we  should take  rights away  that workers                                                                    
     don't want  give up,  in order  to balance  the budget.                                                                    
     So, this  amendment that I  present probably  will save                                                                    
     the administration  money; ...  it will in  those cases                                                                    
     where  the workers'  [compensation]  law is  negotiated                                                                    
     into a contract.   It won't where it's not.   But I see                                                                    
     this as  an issue of  fairness and  not a way  to solve                                                                    
     the state's budget woes.                                                                                                   
                                                                                                                                
CHAIR McGUIRE  relayed that according to  conversations she's had                                                               
with  the representative  from the  Inlandboatmen's Union  of the                                                               
Pacific (IBU), although  there is mixed opinion  among members of                                                               
the IBU, "it  appears to be the belief of  the general population                                                               
of workers  that more of  them would benefit under  the no-fault-                                                               
based workers'  [compensation] system, whereby  you're guaranteed                                                               
instant compensation  for your illness  and without a  statute of                                                               
limitations."  She  reminded members that under the  Jones Act, a                                                               
seaman must bring  a suit, which must find fault,  and that there                                                               
is a  statute of limitations.   She  suggested that while  one of                                                               
the  goals  of HB  164  is  to save  money,  another  goal is  to                                                               
compensate a higher percentage of seamen more certainly.                                                                        
                                                                                                                                
Number 0572                                                                                                                     
                                                                                                                                
A roll call  vote was taken.  Representatives  Gara and Gruenberg                                                               
voted in favor  of Conceptual Amendment 1.   Representatives Ogg,                                                               
Holm,  Samuels,  and  McGuire   voted  against  it.    Therefore,                                                               
Conceptual Amendment 1 failed by a vote of 2-4.                                                                                 
                                                                                                                                
Number 0619                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  moved to report  HB 164 out  of committee                                                               
with  individual  recommendations  and  the  accompanying  fiscal                                                               
notes.   There being no objection,  HB 164 was reported  from the                                                               
House Judiciary Standing Committee.                                                                                             
                                                                                                                                
The committee took an at-ease from 3:20 p.m. to 4:10 p.m.                                                                       
                                                                                                                                
HB 92 - CLERGY TO REPORT CHILD ABUSE                                                                                          
                                                                                                                                
Number 0637                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be HOUSE BILL  NO. 92, "An Act relating to  reports by members of                                                               
the  clergy   and  custodians  of   clerical  records   who  have                                                               
reasonable cause to  suspect that a child has suffered  harm as a                                                               
result of  child abuse  or neglect."   [Before the  committee was                                                               
CSHB 92(STA).]                                                                                                                  
                                                                                                                                
REPRESENTATIVE  SAMUELS moved  to  adopt  the proposed  committee                                                               
substitute  (CS)  for  HB 92,  Version  23-LS0257\U,  Lauterbach,                                                               
4/8/03, as  a work draft.   There  being no objection,  Version U                                                               
was before the committee.                                                                                                       
                                                                                                                                
Number 0710                                                                                                                     
                                                                                                                                
RICHARD  BLOCK, Representational  Lobbyist for  Christian Science                                                               
Committee on Publication  for Alaska, told the  committee that he                                                               
is speaking on  behalf of those who turn to  spiritual prayer for                                                               
healing.  He referred to  his previous testimony regarding HB 92,                                                               
heard by the  House State Affairs Standing Committee  [on March 6                                                               
and 18,  2003], wherein  he stated that  his organization  had no                                                               
objection  to  the  proposed   legislation  and  understands  its                                                               
purpose, and  had asked for and  was granted some changes  in the                                                               
language  that  recognize  that Christian  Science  practitioners                                                               
need  the same  level of  protection as  ordained clergy  because                                                               
they do  take "confidential communications"  from those  who come                                                               
for  spiritual solace  or healing.    He added,  "And that  could                                                               
include situations where  they might disclose the  kind of things                                                               
that the legislature's  trying to reach here."  He  said, "So, we                                                               
were pretty content with [CSHB 92(STA)]."                                                                                       
                                                                                                                                
MR.  BLOCK said  that he  had not  studied Version  U until  last                                                               
night.   After reading  it, he  said, he  came to  the conclusion                                                               
that  the committee  is  still interested  in  ensuring that  the                                                               
provisions [in the bill] apply  to all faith communities, so that                                                               
those who entertain confidential  communications from the members                                                               
of  that faith  community are  as  protected as  those who  might                                                               
speak to  a catholic priest,  or a minister,  or a pastor  who is                                                               
ordained.  He noted that  a Christian Science practitioner is not                                                               
ordained and  is not selected  or engaged in anything  that might                                                               
be termed "ecclesiastical."   Thus, he has  concern regarding the                                                               
way the  language has developed; he  said that it tends  to focus                                                               
on   those  faith   communities  that   have  a   more  elaborate                                                               
ecclesiastical,  ceremonial, or  ritual  approach to  determining                                                               
who can speak and pray with those who have the need for it.                                                                     
                                                                                                                                
Number 0906                                                                                                                     
                                                                                                                                
MR. BLOCK said that in talking with the staff:                                                                                  
                                                                                                                                
     They use the  word in the definition of  ... "clergy" -                                                                    
     those  who are  set apart.   But  I'm not  sure that  I                                                                    
     understand    what   the    meaning    of   that    is.                                                                    
     Unfortunately,  should this  ever  reach  the level  of                                                                    
     having to  be interpreted by  a court, we're  left with                                                                    
     judicial interpretation and the  rules thereof, and I'm                                                                    
     afraid  that the  overabundance of  language here  that                                                                    
     speaks to the  more ceremonial and ritual  may turn the                                                                    
     court away  from the  fact that,  in reality,  what the                                                                    
     legislature   had  in   mind   was   making  room   and                                                                    
     recognizing  all  faith  communities  that  had  people                                                                    
     within  them that  wanted to  pray for  and with  those                                                                    
     that were in need.                                                                                                         
                                                                                                                                
MR.  BLOCK said  that in  keeping with  what he  believes is  the                                                               
legislature's intent, he  would propose some modest  changes.  He                                                               
noted  that   there  are  two   things  that  [Version   U]  does                                                               
differently than CSHB 92(STA).  He elaborated:                                                                                  
                                                                                                                                
     One is:  it really  tightens up the circumstances under                                                                    
     which the communication is  protected.  Irrespective of                                                                    
     who they're talking to,  the communication is protected                                                                    
     only if  it meets three  criteria set out  in [proposed                                                                    
     AS 47.17.021].                                                                                                             
                                                                                                                                
CHAIR  McGUIRE indicated  to  Mr. Block  that  the committee  has                                                               
formulated amendments to address the issue he is raising.                                                                       
                                                                                                                                
Number 1027                                                                                                                     
                                                                                                                                
FLOYD  SMITH,   Consultant,  Alaska   District  Council   of  the                                                               
Assemblies  of  God, said  that  his  organization could  endorse                                                               
[Version U] as  long as committee adopt the  same amendments that                                                               
Mr. Block has proposed.                                                                                                         
                                                                                                                                
MR. BLOCK clarified  that one of his amendments  [which was later                                                               
referred   to  as   Conceptual  Amendment   1]  reads   [original                                                               
punctuation provided]:                                                                                                          
                                                                                                                                
     Page 2, line 14                                                                                                            
    Delete   "in   the   clergy   member's   ecclesiastical                                                                     
     capacity"                                                                                                                  
                                                                                                                                
MR.  BLOCK opined  that the  language doesn't  add anything,  but                                                               
strengthens the  impression that "you  have to have some  sort of                                                               
ecclesiastical formal arrangement."   He added, "And we're trying                                                               
to move away from that."                                                                                                        
                                                                                                                                
MR. SMITH  said, "We could endorse  that."  He referred  to [page                                                               
2,  beginning on  line  15],  which read:    "if  (1) the  church                                                               
qualifies  as  tax-exempt   under  26  U.S.C.  501(c)(3)(Internal                                                               
Revenue  Code)".    He  told  the  committee  that  many  of  his                                                               
organization's churches  are in  villages, are  not incorporated,                                                               
don't have 501(c)(3)  status, and "piggyback on the  basis of the                                                               
state."   If  it is  the  intent that  a church  qualify for  and                                                               
receive 501(c)(3) status, he said,  there will be problems in the                                                               
villages.   If it  instead simply means  that the  church "could"                                                               
qualify, then that's okay, he stated.                                                                                           
                                                                                                                                
MR. SMITH  referred to the  portion of  [page 2], line  19, which                                                               
read:  "places the clergy  member specifically and strictly".  He                                                               
said his  organization would like  to see "and  strictly" deleted                                                               
because  "it adds  nothing  to it,  and it  might  be subject  to                                                               
interpretation."                                                                                                                
                                                                                                                                
MR.  SMITH  also  noted,  in keeping  with  Mr.  Block's  comment                                                               
regarding Christian  Science practitioners and the  definition of                                                               
clergy,   that  many   Assembly  of   God  ministers   and  other                                                               
evangelical  ministers  are  not   ordained;  instead,  they  are                                                               
licensed.  He said he would like the word "licensed" to be used.                                                                
                                                                                                                                
Number 1199                                                                                                                     
                                                                                                                                
CHAIR McGUIRE thanked Mr. Block and Mr. Smith for their                                                                         
testimony.  She then announced that public testimony was closed.                                                                
                                                                                                                                
REPRESENTATIVE GARA said:                                                                                                       
                                                                                                                                
     I think  I can speak  for most of us  if I say  that we                                                                    
     don't want to create a  privilege that is so broad that                                                                    
     it would strike  out the duty to report  child abuse or                                                                    
     child  neglect.   And I  applaud the  committee members                                                                    
     for  inserting the  term child  neglect back  into this                                                                    
     version of the  bill.  I believe we  should report both                                                                    
     child abuse  and child neglect;  it is  that important.                                                                    
     We still have  a decision to make.  I  think many of us                                                                    
     believe  that the  confidentiality provision  should be                                                                    
     written as narrowly  as possible.  That  was the intent                                                                    
     of  the sponsor  when just  the sacramental  confession                                                                    
     was  included into  the confidentiality  provision, but                                                                    
     nothing else.   But many of us thought,  "Well, that is                                                                    
     too  religion-specific."   I  applaud [Chair  McGuire].                                                                    
     We've all  discussed what's probably the  most narrowly                                                                    
     drawn  confidentiality provision  in  the country,  and                                                                    
     that's the  Idaho version. ...  That's the one  that is                                                                    
     now in this CS.                                                                                                            
                                                                                                                                
     But, before we  discuss which confidentiality provision                                                                    
     to accept -  and that's what all  the amendments relate                                                                    
     to,  which  confidentiality  provision to  accept  -  I                                                                    
     still am  wondering whether or not  we should recognize                                                                    
     any confidentiality provision.   And I guess  I want to                                                                    
     hear from the members about  that.  We don't accept one                                                                    
     in the case  of reporting abuse of elders.   Many other                                                                    
     states do  not accept  any privilege by  clergy members                                                                    
     to refrain  from reporting  abuse and  neglect.   And I                                                                    
     would like  to hear  from the other  committee members,                                                                    
     views on whether that is  a proper approach, or whether                                                                    
     ...   it  seems   to  us   that  we   should  adopt   a                                                                    
     confidentiality provision.   So, [it's]  that threshold                                                                    
     question  of  whether  a confidentiality  provision  is                                                                    
     something that  we want or  don't want.  And  I suppose                                                                    
     if  the  other  members  believe  that  we  do  need  a                                                                    
     confidentiality provision  of some  sort, then  I don't                                                                    
     need to hear  from them, but that's my  question to the                                                                    
     other committee members.                                                                                                   
                                                                                                                                
Number 1340                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG stated that he  thinks there should be a                                                               
confidentiality provision.   He said  that "these are  very, very                                                               
confidential  communications,"  and  if  a person  goes  to  seek                                                               
counseling from a clergy person  in a confidential setting, "that                                                               
ought to  be respected."   He referred to the  recent revelations                                                               
of sexual abuse,  and said that to his knowledge,  every case was                                                               
"done  outside of  the  confidences."   Referring  to the  Alaska                                                               
Rules of Evidence, he noted  that "priest penitent," more broadly                                                               
defined as  "confidential communication  with a clergy,"  is very                                                               
strongly  respected.   He stated  that if  the committee  adopted                                                               
some  kind  of  confidentiality  provision,  he  would  ask  that                                                               
something similar  be put in  the elder  abuse law..   He relayed                                                               
that  Karleen  Jackson,  Deputy   Commissioner,  [Office  of  the                                                               
Commissioner],  Department of  Health &  Social Services  [DHSS],                                                               
told him  that [the DHSS]  wants child  abuse and elder  abuse to                                                               
have the same standards regarding [confidentiality provisions].                                                                 
                                                                                                                                
CHAIR McGUIRE  said she  has spent  much time  contemplating this                                                               
issue.   She  said  she  wondered "whether  it  was  fair to  the                                                               
children [who] were being abused."   She asked, "Whose rights are                                                               
we putting  first?"  She  said child  abuse is a  terrible thing,                                                               
with lifelong  ramifications, and stated her  concern that "those                                                               
abuses will  be revealed  and nothing will  be done  about them."                                                               
Noting  that religion  is an  important part  of society  and the                                                               
church is  an important part  of many people's lives,  she stated                                                               
that  criminalizing  priests  and  clergy  for  doing  what  they                                                               
believe is within the cannons of  their church is not the goal of                                                               
the committee.                                                                                                                  
                                                                                                                                
CHAIR McGUIRE  said she  would support  a very  narrow exception,                                                               
adding that it  is her belief that  most of what occurs  is to be                                                               
reported by  law.  She  said she  would encourage members  of the                                                               
clergy to advise  their parishioners who are  abusing children to                                                               
seek help and report it to the civil authorities.                                                                               
                                                                                                                                
REPRESENTATIVE  SAMUELS said  he agreed  that it  doesn't do  any                                                               
good [for the  legislature] to put into law that  they report, if                                                               
they're  not  going  to  report  because  of  their  cannons  and                                                               
beliefs.   He  said that  he would  hate to  criminalize somebody                                                               
whose job is to help people.  He continued as follows:                                                                          
                                                                                                                                
     And I would also echo  what [Chair McGuire] said on ...                                                                    
     "very narrow."   Just because you're  a catholic priest                                                                    
     doesn't mean,  when somebody tells you  something, that                                                                    
     it's in confession, or just  because you are a minister                                                                    
     does not mean that it  is confidential.  There's got to                                                                    
     be  a pretty  bright line  ....   So,  I would  support                                                                    
     having the exemption.                                                                                                      
                                                                                                                                
Number 1642                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA stated  that it  was also  a very  difficult                                                               
issue for him.  He added:                                                                                                       
                                                                                                                                
     The  bill  that  came  to  this  committee  included  a                                                                    
     provision  that would  have allowed  many instances  of                                                                    
     child abuse not  to be reported.  I think  we've done a                                                                    
     good job  in limiting the circumstances  where ... that                                                                    
     would happen.                                                                                                              
                                                                                                                                
REPRESENTATIVE HOLM  stated, "The  bill we're talking  about here                                                               
is not in place."  He said  he is looking at ten amendments which                                                               
would change the  bill considerably.  He suggested  taking up the                                                               
amendments before debating the bill.                                                                                            
                                                                                                                                
CHAIR  McGUIRE  said she  had  been  allowing some  latitude  for                                                               
members to speak to the  broader philosophical question regarding                                                               
whether any exemption  should be provided.  She  said, "This bill                                                               
would  clearly do  that, and  the amendments  would clarify  that                                                               
particular choice."                                                                                                             
                                                                                                                                
REPRESENTATIVE  HOLM   stated  that   he  does  not   agree  with                                                               
Representative  Gara's assessment  that  reporting  neglect is  a                                                               
simple and  easy thing  to put  in the bill,  adding that  he has                                                               
objection  to  such  a  provision.     He  said  that  until  the                                                               
amendments  are in  place, it  is difficult  for him  to make  an                                                               
assessment of the bill.                                                                                                         
                                                                                                                                
REPRESENTATIVE   OGG  said   he   believed   the  question   that                                                               
Representative Gara  asked was whether  to favor  no restrictions                                                               
or favor  strict confidentiality.   He stated  that he  favors "a                                                               
strict statement of what confidentiality is."                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG   mentioned  that  although   he'd  had                                                               
specific amendments prepared  affecting Sections 2 and  3, he has                                                               
decided not to offer those specific  amendments.  On the issue of                                                               
reporting neglect, he said that  although the House State Affairs                                                               
Standing Committee  eliminated the  reporting of neglect,  he has                                                               
since decided that he does want neglect to be reported.                                                                         
                                                                                                                                
Number 1882                                                                                                                     
                                                                                                                                
CHAIR McGUIRE noted  that Representative Holm had  been absent at                                                               
the time  the committee  discussed the  issue of  reinserting the                                                               
reporting of  neglect.  She  indicated that because  of testimony                                                               
provided by the  Division of Family & Youth  Services (DFYS), the                                                               
Alaska  Catholic  Conference,  and   the  sponsor  at  the  prior                                                               
hearing, the  committee had agreed  to reinsert the  reporting of                                                               
neglect. She  added, "It  was in the  elder abuse  statute, [and]                                                               
it's the right thing to do."                                                                                                    
                                                                                                                                
REPRESENTATIVE  HOLM indicated  that his  problem with  requiring                                                               
the reporting  of neglect  is that  the term  is subjective.   He                                                               
noted that there  are two definitions of neglect:   one is in the                                                               
Child In  Need Of  Aid (CINA)  regulations, and  the other  is in                                                               
state law.  He stated his  understanding that the two are not the                                                               
same, adding that the CINA definition is stricter.                                                                              
                                                                                                                                
REPRESENTATIVE HOLM continued:                                                                                                  
                                                                                                                                
     But my  point is ...  that the problem with  neglect is                                                                    
     it's  ... a  view of  someone  who looks  at how  other                                                                    
     folks live and says that  they've been neglected or not                                                                    
     neglected.   Now  I'm  not promoting  any  child to  be                                                                    
     neglected.   Lord  knows,  I grew  up  in a  homestead,                                                                    
     where  people   could  have   accused  my   parents  of                                                                    
     neglecting  me,  because  we didn't  have  any  of  the                                                                    
     amenities that the people that  lived in town did.  But                                                                    
     what I did have is ...  good parenting, and I had love.                                                                    
     I had  a lot  of things  that have  nothing to  do with                                                                    
     nice clothes and new shoes and any of those things.                                                                        
                                                                                                                                
     So,  I'm a  little sensitive  to this  from a  personal                                                                    
     standpoint because I want to  give pastors and churches                                                                    
     the ability to  uplift, to bring people  up, to elevate                                                                    
     them without being  penitent, without being accusatory,                                                                    
     without feeling  as if they're  going to have  to judge                                                                    
     folks, based  upon some inappropriate judgment.  ... It                                                                    
     really has nothing  to do with whether or  not a person                                                                    
     can  or cannot  be  neglectful of  their children,  but                                                                    
     whose making that choice?   And to penalize, or to take                                                                    
     a member of  the clergy, who is a member  of the clergy                                                                    
     for  the  purpose of  helping  ...  every person  [who]                                                                    
     comes to  them, regardless of  where they come  from, I                                                                    
     think ... it's a bad message.  ... I ... think we could                                                                    
     probably all  agree what  child abuse  is, but  I'm not                                                                    
     sure you  can use the word  "neglect" because neglect's                                                                    
     too soft a word for me.                                                                                                    
                                                                                                                                
Number 2049                                                                                                                     
                                                                                                                                
     Neglect means  that what?   Maybe  the mother  left the                                                                    
     child in  the car  and went  out and  got drunk  - good                                                                    
     case for  neglect.   [Maybe] she ...  left the  car and                                                                    
     ... went in  to get ... milk.  Is  that neglect?  Well,                                                                    
     you  could make  the  case it's  neglect  if, in  fact,                                                                    
     somebody broke  into the car  and hurt the child.   You                                                                    
     could make  the case if she  left the child in  the car                                                                    
     and it was 100 [degrees]  above [zero]. ... But I don't                                                                    
     think neglect  is as firm a  word or as good  a word to                                                                    
     use, even though it's in law.                                                                                              
                                                                                                                                
     ... We can write them down  in a book, but that doesn't                                                                    
     mean the pastor who is  sitting in the church reads the                                                                    
     law book. ...  They only know neglect  based upon their                                                                    
     history; they  don't [know] what neglect  is based upon                                                                    
     you and I  sitting here ... telling  them neglect means                                                                    
     such and such.  So I  think it's so nebulous of an area                                                                    
     that  it's just  tough for  me to  buy, ...  putting it                                                                    
     into  law like  this. ...  I  think it's  one of  those                                                                    
     words  that can  be misused  by overzealous  members of                                                                    
     [the DHSS].                                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG  responded, "That was the  thinking that                                                               
carried  the day  in the  [House] State  Affairs Committee."   He                                                               
stated, "I have changed my position since then."                                                                                
                                                                                                                                
CHAIR McGUIRE told Representative  Holm that she appreciates what                                                               
he is saying,  but said, "On this  one, I err on the  side of the                                                               
child."                                                                                                                         
                                                                                                                                
Number 2142                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  moved to  adopt  [Conceptual]  Amendment 1  [text                                                               
provided previously].                                                                                                           
                                                                                                                                
REPRESENTATIVE GARA  stated that he  would object to each  one of                                                               
[the amendments] so  that he could read them in  context with the                                                               
bill.                                                                                                                           
                                                                                                                                
REPRESENTATIVE BOB LYNN, Alaska  State Legislature, sponsor, said                                                               
that he has no objection to [Conceptual] Amendment 1.                                                                           
                                                                                                                                
REPRESENTATIVE  GARA   noted  that  the  bill   [with  Conceptual                                                               
Amendment 1] would read as follows [on page 2, line 14]:                                                                        
                                                                                                                                
      confidential communication made to the clergy member                                                                      
     in the course of discipline enjoined by the church                                                                         
                                                                                                                                
REPRESENTATIVE GARA  asked for the  definition of "in  the course                                                               
of discipline enjoined by the church".                                                                                          
                                                                                                                                
REPRESENTATIVE GRUENBERG said that  "discipline" is in the course                                                               
of their  official function"; however,  he stated that he  is not                                                               
sure of the meaning of the word "enjoined".                                                                                     
                                                                                                                                
CHAIR McGUIRE noted that "this was taken from Idaho."                                                                           
                                                                                                                                
REPRESENTATIVE  GARA asked  what  is  wrong with  "ecclesiastical                                                               
capacity".   He asked if the  concern is that it  only applies to                                                               
religions that believe in a god.                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG asked Mr. Block to clarify the issue.                                                                  
                                                                                                                                
MR.  BLOCK reiterated  his point  that the  term ["ecclesiastical                                                               
capacity"] tends  to connote a  more ritualistic,  ceremonial, or                                                               
organized form  of ordination.   He said that his  suggestion had                                                               
been to  remove the  abundance of language  in the  Idaho version                                                               
that  would  tend towards  the  more  ceremonial and  ritualistic                                                               
circumstance, and make it more open.                                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG said, "That was  persuasive to me at the                                                               
time and it is now."                                                                                                            
                                                                                                                                
REPRESENTATIVE LYNN said  that [his staff] has  just informed him                                                               
that the word "ecclesiastical" is the Latin word for "church."                                                                  
                                                                                                                                
WILLIAM MOFFATT,  Staff to Representative Bob  Lynn, Alaska State                                                               
Legislature, said removing that word would be fine.                                                                             
                                                                                                                                
REPRESENTATIVE HOLM said, "So we're  just getting rid of the word                                                               
'ecclesiastical'."                                                                                                              
                                                                                                                                
REPRESENTATIVE  GARA,   in  response  to  a   question,  said  he                                                               
maintains his objection.                                                                                                        
                                                                                                                                
Number 2322                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGG  suggested that  the word  "ecclesiastical" be                                                               
replaced by the word "religious" [on page 2, line 14].                                                                          
                                                                                                                                
CHAIR  McGUIRE  called it  a  friendly  amendment to  [Conceptual                                                               
Amendment 1].  Thus [Conceptual] Amendment 1 would now read:                                                                    
                                                                                                                                
     Page 2, line 14                                                                                                            
     Delete "ecclesiastical"                                                                                                    
     Insert "religious"                                                                                                         
                                                                                                                                
CHAIR McGUIRE asked whether there  were objections to [Conceptual                                                               
Amendment 1, as amended].                                                                                                       
                                                                                                                                
REPRESENTATIVE GARA said he had no objection.                                                                                   
                                                                                                                                
Number 2340                                                                                                                     
                                                                                                                                
Therefore, Conceptual Amendment 1, as amended, was adopted.                                                                     
                                                                                                                                
CHAIR  McGUIRE  announced  that   all  the  amendments  would  be                                                               
conceptual so  that the  drafters could alter  them as  needed in                                                               
order to "make this work."                                                                                                      
                                                                                                                                
REPRESENTATIVE GRUENBERG,  referring to  the language on  page 2,                                                               
line  15,  said, "I  assume  that  ...  means  in the  course  of                                                               
discipline  sanctioned by  the church  (indisc.)."   He suggested                                                               
replacing "enjoined" with "sanctioned."                                                                                         
                                                                                                                                
Number 2361                                                                                                                     
                                                                                                                                
CHAIR McGUIRE,  in response to Representative  Gruenberg, [made a                                                               
motion to adopt] Conceptual Amendment 2, as follows:                                                                            
                                                                                                                                
     Page 2, line 15                                                                                                            
     Delete "enjoined"                                                                                                          
     Insert "sanctioned"                                                                                                        
                                                                                                                                
There being no objection, Conceptual Amendment 2 was adopted.                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG  referred  to  Mr.  Smith's  previously                                                               
stated suggestion to  strike the words "and  strictly" [from page                                                               
2, line 19].                                                                                                                    
                                                                                                                                
TAPE 03-35, SIDE B                                                                                                            
Number 2380                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  offered  Conceptual  Amendment  3,  to                                                               
delete the words "and strictly" from page 2, line 19.                                                                           
                                                                                                                                
REPRESENTATIVES SAMUELS and GARA objected.                                                                                      
                                                                                                                                
CHAIR  McGUIRE  said  she   likes  "specifically  and  strictly",                                                               
because it makes the language clear.                                                                                            
                                                                                                                                
REPRESENTATIVE   GARA  concurred   with   Chair   McGuire.     He                                                               
elaborated:                                                                                                                     
                                                                                                                                
     We are  trying to  keep this  confidentiality provision                                                                    
     ...  as narrow  as  possible, because  I  want as  much                                                                    
     abuse and  neglect to be reported  as possible, without                                                                    
     offending the major tenets of a religion.                                                                                  
                                                                                                                                
REPRESENTATIVE GRUENBERG withdrew Conceptual Amendment 3.                                                                       
                                                                                                                                
[The  next  amendment  was  also   given  the  name,  "Conceptual                                                               
Amendment 3."]                                                                                                                  
                                                                                                                                
Number 2328                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG [made  a  motion  to adopt  Conceptual]                                                               
Amendment 3, which read [original punctuation provided]:                                                                        
                                                                                                                                
     At P. 2 ln 20                                                                                                              
     Delete "church"                                                                                                            
     Insert "religious"                                                                                                         
                                                                                                                                
There being no objection, Conceptual Amendment 3 was adopted.                                                                   
                                                                                                                                
REPRESENTATIVE  OGG referred  to the  previously stated  comments                                                               
[by Mr.  Smith], regarding [page 2,  beginning on line 15]:   "if                                                               
(1) the church qualifies as  tax-exempt under 26 U.S.C. 501(c)(3)                                                               
(Internal  Revenue   Code)".    He  suggested   inserting  "could                                                               
qualify" instead  of "qualifies".   He said, "To  me, 'qualifies'                                                               
says  you either  are  qualified or  you can,  when  you use  the                                                               
'qualifies' term,"  but acknowledged  that others might  not have                                                               
this same understanding.                                                                                                        
                                                                                                                                
CHAIR  McGUIRE noted,  however, that  they didn't  want everybody                                                               
using the exemption.                                                                                                            
                                                                                                                                
REPRESENTATIVE SAMUELS relayed that he  is not familiar with what                                                               
the qualifications are for that status.                                                                                         
                                                                                                                                
REPRESENTATIVE OGG said  that there is a  list of qualifications,                                                               
adding that  some organizations  which do  qualify apply  for the                                                               
status and some don't.                                                                                                          
                                                                                                                                
CHAIR  McGUIRE suggested  using instead  the term,  "qualifies or                                                               
[meets] the standards".                                                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG remarked  that  using  the term  "would                                                               
qualify" would be sufficient.                                                                                                   
                                                                                                                                
REPRESENTATIVE HOLM agreed.                                                                                                     
                                                                                                                                
Number 2212                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGG  [made a motion to  adopt Conceptual Amendment                                                               
4]:                                                                                                                             
                                                                                                                                
     Page 2, line 16                                                                                                            
     Delete "qualifies"                                                                                                         
     Insert "would qualify"                                                                                                     
                                                                                                                                
There being no objection, Conceptual Amendment 4 was adopted.                                                                   
                                                                                                                                
Number 2199                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG [made  a  motion  to adopt  Conceptual]                                                               
Amendment 5, as follows:                                                                                                        
                                                                                                                                
     Page 2, line 28                                                                                                            
                                                                                                                                
     After "ordained"                                                                                                           
     Insert ", licensed,"                                                                                                       
                                                                                                                                
There being no objection, Conceptual Amendment 5 was adopted.                                                                   
                                                                                                                                
REPRESENTATIVE   GRUENBERG   began   discussion   of   Conceptual                                                               
Amendment 6, which read [original punctuation provided]:                                                                        
                                                                                                                                
     Page 2, line 29,                                                                                                           
                                                                                                                                
     After "the", insert "laws,"                                                                                                
     After "ceremonial, [sic]" insert "or"                                                                                      
     After "ritual" insert "practices"                                                                                          
                                                                                                                                
REPRESENTATIVE GRUENBERG suggested  adopting Conceptual Amendment                                                               
6 in three parts.                                                                                                               
                                                                                                                                
CHAIR McGUIRE pointed  out, however, that as  a whole, Conceptual                                                               
Amendment  6  would change  the  language  on  line 29  to  read:                                                               
"accordance  with the  laws, ceremonial  or ritual  practices, or                                                               
discipline".                                                                                                                    
                                                                                                                                
Number 2128                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  [moved to adopt Conceptual  Amendment 6                                                               
as a whole].                                                                                                                    
                                                                                                                                
CHAIR McGUIRE objected.                                                                                                         
                                                                                                                                
REPRESENTATIVE SAMUELS  asked if there  would be a  problem using                                                               
the term, "the laws of a religious organization".                                                                               
                                                                                                                                
REPRESENTATIVE LYNN replied  that he did not have  a problem with                                                               
that  term, because  some churches  have what  is called  "cannon                                                               
law."                                                                                                                           
                                                                                                                                
REPRESENTATIVE  GRUENBERG  added  that the  Catholic  Church  has                                                               
[cannon law] and the Jewish faith has Talmudic law.                                                                             
                                                                                                                                
REPRESENTATIVE  GARA  objected  to  the  insertion  of  the  word                                                               
"practices".  He elaborated:                                                                                                    
                                                                                                                                
     I think  the inclusion  of the word  "practices" allows                                                                    
     us to include  somebody as a clergy member  who, in the                                                                    
     church's day-to-day practice,  is somebody who receives                                                                    
     confidential  communications.   That could  be somebody                                                                    
     who we  don't really regard  as a clergy member.   That                                                                    
     could  be  ...  somebody  who   we  regard  as  just  a                                                                    
     counselor.  I  think that threatens to  make the people                                                                    
     to whom  these confidential  communications can  go to,                                                                    
     and the people  ... who won't have to  report abuse and                                                                    
     neglect, too  broad.   So ... I  think that  this would                                                                    
     allow ... counselors within a  religion to refrain from                                                                    
     reporting abuse and neglect.                                                                                               
                                                                                                                                
REPRESENTATIVE  GRUENBERG   pointed  out   that  the   phrase  is                                                               
"ceremonial or ritual practices".                                                                                               
                                                                                                                                
CHAIR  McGUIRE  concurred,  adding  that  "ceremonial  or  ritual                                                               
practices" is one concept.                                                                                                      
                                                                                                                                
REPRESENTATIVE GARA withdrew his objection.                                                                                     
                                                                                                                                
CHAIR McGUIRE asked whether there  were any further objections to                                                               
Conceptual Amendment 6.                                                                                                         
                                                                                                                                
Number 1999                                                                                                                     
                                                                                                                                
CHIP WAGONER, Lobbyist for the  Alaska Catholic Conference, after                                                               
noting  that the  Alaska Catholic  Conference is  made up  of the                                                               
three  Roman Catholic  bishops of  Alaska, opined  that a  slight                                                               
drafting error has been made [in Section 3].  He elaborated:                                                                    
                                                                                                                                
     Clergy  members  are  required to  report,  under  this                                                                    
     bill.    We  want  clergy members  to  be  required  to                                                                    
     report, under  this bill.   But,  if you  define clergy                                                                    
     member  as  only  those  people  who  hear  confessions                                                                    
     and/or confidential  communications, then  those clergy                                                                    
     members  that don't  hear confessions  and confidential                                                                    
     communications would not be mandatory reporters.                                                                           
                                                                                                                                
Number 1943                                                                                                                     
                                                                                                                                
CHAIR McGUIRE surmised, then, that  perhaps an amendment defining                                                               
"clergy" is  needed, unless  [the committee]  wants to  leave the                                                               
[current] definition and  delete, from page 2, line  31, "to hear                                                               
confessions  and  confidential   communications".    [The  latter                                                               
concept was later moved as Conceptual Amendment 8.]                                                                             
                                                                                                                                
REPRESENTATIVE GRUENBERG  pointed out, however,  that [Conceptual                                                               
Amendment 7] strikes "and" from line 31 and puts in "or".                                                                       
                                                                                                                                
Number 1903                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE, turning  back to  the  issue of  Amendment 6  and                                                               
indicating  that there  was no  longer  any objection,  announced                                                               
that Conceptual Amendment 6 was adopted.                                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG relayed  that [Justin  Roberts, one  of                                                               
his staff  members] has  just told him  that "this  definition is                                                               
throughout this  bill"; therefore,  "unless you  hear confessions                                                               
or confidential communications, you won't even have to report."                                                                 
                                                                                                                                
CHAIR  McGUIRE said,  "Right; that's  why we're  going to  strike                                                               
it."                                                                                                                            
                                                                                                                                
Number 1882                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE [moved  to adopt  Conceptual  Amendment 7],  which                                                               
read [original punctuation provided]:                                                                                           
                                                                                                                                
     Page 2, line 31                                                                                                            
     after "confessions"                                                                                                        
     Delete "and"                                                                                                               
     Insert "or"                                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG said:                                                                                                  
                                                                                                                                
     If we  do this, and I  don't know if this  is where Mr.                                                                    
     Wagoner was coming  from, but Justin said  that what --                                                                    
     there  are  two  things  here.   One  question  is  who                                                                    
     reports.  And  if clergy people are  required to report                                                                    
     - clergy members  - and we limit it to  people who hear                                                                    
     confessions  ... or  confidential communications,  then                                                                    
     clergy  members  who don't  hear  those  don't have  to                                                                    
     report.  What  we want to do is  make everybody report,                                                                    
     but  only have  the  people who  [hear] confessions  or                                                                    
     [confidential communications] have the privilege.                                                                          
                                                                                                                                
CHAIR  McGUIRE  said, "Absolutely."    She  surmised, then,  that                                                               
Representative  Gruenberg's comment  was  support for  Conceptual                                                               
Amendment 7  rather than  objection to  it.   She opined  that by                                                               
inserting "or" in  place of "and" on line 31,  "we are getting at                                                               
exactly what  you said, which is,  we are allowing both  types in                                                               
for the privilege, and in for the reporting."                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he  wasn't sure.    He asked  Mr.                                                               
Roberts to speak.                                                                                                               
                                                                                                                                
Number 1838                                                                                                                     
                                                                                                                                
JUSTIN  ROBERTS, Staff  to Representative  Max Gruenberg,  Alaska                                                               
State Legislature, said:                                                                                                        
                                                                                                                                
     [If] you don't hear  either confessions or confidential                                                                    
     communications,  then  you   wouldn't  be  required  to                                                                    
     report.  So somebody that doesn't hear either ...                                                                          
                                                                                                                                
REPRESENTATIVE GRUENBERG said, "That's what my concern is."                                                                     
                                                                                                                                
Number 1830                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  [renewed  Chair  McGuire's  motion  to                                                               
adopt Conceptual Amendment 7].                                                                                                  
                                                                                                                                
Number 1827                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG made  a motion  to adopt  the following                                                               
[which became Conceptual Amendment 8]:                                                                                          
                                                                                                                                
     But then  I'll offer  another conceptual  amendment for                                                                    
     the drafters  and ... the  staff to make  certain that,                                                                    
     what  we  want  is,  everybody reports,  but  only  the                                                                    
     people   who    hear   confessions    or   confidential                                                                    
     communications have a privilege.                                                                                           
                                                                                                                                
CHAIR McGUIRE said, "Perfect."                                                                                                  
                                                                                                                                
Number 1821                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  asked if there  were any objections  to Conceptual                                                               
Amendment [7].  There being  no objection, Conceptual Amendment 7                                                               
was adopted.                                                                                                                    
                                                                                                                                
Number 1818                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  asked if there  were any objections  to Conceptual                                                               
Amendment 8.   There being  no objection, Conceptual  Amendment 8                                                               
was adopted.                                                                                                                    
                                                                                                                                
MR. BLOCK,  in reference to  Conceptual Amendment 5,  pointed out                                                               
that  he  had  asked  that  the word  "listed"  be  used  in  the                                                               
definition  of a  clergy member  [on  page 2,  line 28],  because                                                               
Christian   Science  practitioners   are  neither   ordained  nor                                                               
licensed.  In  response to Representatives Gruenberg  and Ogg, he                                                               
clarified that  it had been  Mr. Smith,  not he, who  had offered                                                               
the word "licensed".                                                                                                            
                                                                                                                                
CHAIR McGUIRE opined  that the term, "set  apart" would addresses                                                               
Mr. Block's concern.                                                                                                            
                                                                                                                                
MR. BLOCK responded that if  the words "otherwise set apart" were                                                               
used, [that would be] okay.                                                                                                     
                                                                                                                                
Number 1748                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  reminded  Mr. Block  that  public  testimony  was                                                               
closed.                                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG  stated that  he wanted  the legislative                                                               
history to reflect  that the words, "or set  apart" means exactly                                                               
what Mr. Block has just said.                                                                                                   
                                                                                                                                
CHAIR McGUIRE  announced that  the record is  now clear  that "or                                                               
set apart" can include the  Christian Science practice of listing                                                               
clergy.                                                                                                                         
                                                                                                                                
REPRESENTATIVE  GARA stated,  "The record  is now  muddled."   He                                                               
elaborated:                                                                                                                     
                                                                                                                                
     The  questioner actually  inserted something  that none                                                                    
     of us intend  and something that some of  us do intend.                                                                    
     I believe that what we intend  to do, and unless I hear                                                                    
     any objection, what we mean to  do is for this to read,                                                                    
     "who  has been  ordained,  licensed,  or otherwise  set                                                                    
     apart".                                                                                                                    
                                                                                                                                
     So,  we all  mean  to insert  the  word "otherwise"  in                                                                    
     concept, but  we believe it's  covered, as  written, so                                                                    
     we're not  going to  insert the word.   That's  what we                                                                    
     mean to accept from ...                                                                                                    
                                                                                                                                
CHAIR McGUIRE said, "That's right."                                                                                             
                                                                                                                                
REPRESENTATIVE  GRUENBERG, at  the same  time, said,  "That's the                                                               
amendment."                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA concluded, "That's what we agree to."                                                                       
                                                                                                                                
[Although  there  was no  motion  to  insert either  "listed"  or                                                               
"otherwise", the  drafters later,  at the  request of  the Chair,                                                               
inserted  the word  "listed" into  the  House Judiciary  Standing                                                               
Committee's  final version  of  the bill  as  part of  Conceptual                                                               
Amendment 5.]                                                                                                                   
                                                                                                                                
Number 1699                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG moved  to  adopt [Conceptual  Amendment                                                               
9],  to  be   inserted  at  the  end  of   Section  2,  [original                                                               
punctuation provided]:                                                                                                          
                                                                                                                                
     (c)  nothing in  this  section shall  prevent a  clergy                                                                    
     member  from reporting  an instance  of child  abuse or                                                                    
     neglect.                                                                                                                   
                                                                                                                                
There being no objection, Conceptual Amendment 9 was adopted.                                                                   
                                                                                                                                
Number 1678                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG moved  that "we  do, conceptually,  the                                                               
same thing for the elder abuse law."                                                                                            
                                                                                                                                
REPRESENTATIVE GARA objected.                                                                                                   
                                                                                                                                
CHAIR McGUIRE  suggested to Representative  Gruenberg that  he do                                                               
that in a separate bill.                                                                                                        
                                                                                                                                
REPRESENTATIVE Gruenberg said, "That's fine."                                                                                   
                                                                                                                                
REPRESENTATIVE  OGG recommended  that  the committee  hold HB  92                                                               
over  for  the  purpose  of   reviewing  the  drafter's  finished                                                               
product.                                                                                                                        
                                                                                                                                
CHAIR McGUIRE stated that she would  prefer to see the bill moved                                                               
from  committee.   She said  that the  finished product  would be                                                               
brought  to members'  offices, and  offered  that if  there is  a                                                               
problem,  the legislation  can  either be  pulled  back into  the                                                               
House Judiciary Standing Committee or  altered in the House Rules                                                               
Standing Committee.                                                                                                             
                                                                                                                                
Number 1620                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  moved to report the  proposed committee                                                               
substitute  (CS)  for  HB   92,  Version  23-LS0257,  Lauterbach,                                                               
4/8/03,   as   amended,   out  of   committee   with   individual                                                               
recommendations and  the accompanying  zero fiscal notes.   There                                                               
being  no objection,  CSHB 92(JUD)  was reported  from the  House                                                               
Judiciary Standing Committee.                                                                                                   
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
Number 1597                                                                                                                     
                                                                                                                                
There being no  further business before the  committee, the House                                                               
Judiciary Standing Committee meeting was adjourned at 5:10 p.m.                                                                 

Document Name Date/Time Subjects