Legislature(2003 - 2004)

03/22/2004 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                         March 22, 2004                                                                                         
                           1:10 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. 534                                                                                                              
"An Act extending the termination date of the office of victims'                                                                
rights."                                                                                                                        
                                                                                                                                
     - MOVED HB 534 OUT OF COMMITTEE                                                                                            
                                                                                                                                
HOUSE BILL NO. 472                                                                                                              
"An Act relating to claims for personal injury or wrongful death                                                                
against health care providers; and providing for an effective                                                                   
date."                                                                                                                          
                                                                                                                                
     - MOVED CSHB 472(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 273                                                                                       
"An Act relating to the right of a parent to waive a child's                                                                    
claim of negligence against a provider of sports or recreational                                                                
activities."                                                                                                                    
                                                                                                                                
     - MOVED CSSSHB 273(JUD) OUT OF COMMITTEE                                                                                   
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 534                                                                                                                  
SHORT TITLE: EXTEND OFFICE OF VICTIMS RIGHTS                                                                                    
SPONSOR(S): RULES BY REQUEST OF LEG BUDGET & AUDIT                                                                              
                                                                                                                                
03/08/04       (H)       READ THE FIRST TIME - REFERRALS                                                                        
03/08/04       (H)       JUD, FIN                                                                                               
03/22/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
BILL: HB 472                                                                                                                  
SHORT TITLE: CLAIMS AGAINST HEALTH CARE PROVIDERS                                                                               
SPONSOR(S): REPRESENTATIVE(S) ANDERSON                                                                                          
                                                                                                                                
02/16/04       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/16/04       (H)       JUD                                                                                                    
02/25/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/25/04       (H)       Heard & Held                                                                                           
02/25/04       (H)       MINUTE(JUD)                                                                                            
03/03/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/03/04       (H)       Heard & Held                                                                                           
03/03/04       (H)       MINUTE(JUD)                                                                                            
03/05/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/05/04       (H)       -- Meeting Postponed to 3/16/04 --                                                                     
03/16/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/16/04       (H)       Heard & Held                                                                                           
03/16/04       (H)       MINUTE(JUD)                                                                                            
03/19/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/19/04       (H)       Heard & Held                                                                                           
03/19/04       (H)       MINUTE(JUD)                                                                                            
03/22/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
BILL: HB 273                                                                                                                  
SHORT TITLE: PARENTS' WAIVER OF CHILD'S SPORTS CLAIM                                                                            
SPONSOR(S): REPRESENTATIVE(S) MCGUIRE                                                                                           
                                                                                                                                
04/16/03       (H)       READ THE FIRST TIME - REFERRALS                                                                        
04/16/03       (H)       TRA, JUD                                                                                               
05/07/03       (H)       TRA REFERRAL WAIVED                                                                                    
02/16/04       (H)       SPONSOR SUBSTITUTE INTRODUCED                                                                          
02/16/04       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/16/04       (H)       JUD                                                                                                    
03/22/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
STEPHEN BRANCHFLOWER, Director                                                                                                  
Office of Victims' Rights (OVR)                                                                                                 
Alaska State Legislature                                                                                                        
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Urged the committee to report HB 534 from                                                                  
committee.                                                                                                                      
                                                                                                                                
KARLA SCHOFIELD, Deputy Director                                                                                                
Accounting                                                                                                                      
Legislative Administrative Services                                                                                             
Legislative Affairs Agency                                                                                                      
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT:    During discussion  of  HB  534,  answered                                                               
questions.                                                                                                                      
                                                                                                                                
ROGER F. HOLMES, Attorney at Law                                                                                                
Biss & Holmes                                                                                                                   
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:    During discussion  of  HB  472,  answered                                                               
questions.                                                                                                                      
                                                                                                                                
VANESSA TONDINI, Staff                                                                                                          
to Representative Lesil McGuire                                                                                                 
House Judiciary Standing Committee                                                                                              
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT:    Presented  SSHB  273  on  behalf  of  the                                                               
sponsor, Representative McGuire.                                                                                                
                                                                                                                                
TRACEY L. KNUTSON, Attorney at Law                                                                                              
Sisson & Knutson, PC                                                                                                            
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:   During discussion  of  SSHB 273,  answered                                                               
questions.                                                                                                                      
                                                                                                                                
MYRA CASEY, Field Administrator                                                                                                 
Central Office                                                                                                                  
Office of Children's Services (OCS)                                                                                             
Department of Health and Social Services (DHSS)                                                                                 
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT:   During discussion  of SSHB  273, explained                                                               
the term "surrogate parent."                                                                                                    
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 04-44, SIDE A                                                                                                            
Number 0001                                                                                                                     
                                                                                                                                
CHAIR  LESIL   McGUIRE  called   the  House   Judiciary  Standing                                                             
Committee  meeting  to  order  at   1:10  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 534 - EXTEND OFFICE OF VICTIMS RIGHTS                                                                                      
                                                                                                                                
Number 0052                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be HOUSE BILL NO. 534, "An  Act extending the termination date of                                                               
the office of victims' rights."                                                                                                 
                                                                                                                                
Number 0093                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS,  as  chair  of the  Joint  Committee  on                                                               
Legislative Budget and  Audit, sponsor of HB  534, explained that                                                               
this legislation  is a simple  sunset extension of the  Office of                                                               
Victims' Rights  (OVR).  Representative Samuels  pointed out that                                                               
this is being  [addressed] a bit early because  sometimes the OVR                                                               
is  taking cases  that can  last several  years.   Therefore, the                                                               
desire is to  ensure that the OVR can, in  good conscience, still                                                               
take  the case  without the  sunset [becoming  a problem].   This                                                               
legislation was based on the  statute pertaining to the Office of                                                               
the  Ombudsman.   Although the  Office of  the Ombudsman  doesn't                                                               
have a  sunset date, Representative  Samuels opined that  the OVR                                                               
is new  enough that he  wanted to [maintain some  oversight] with                                                               
regard to  the office's effectiveness  and work.  He  pointed out                                                               
that the  committee packet  should contain  the annual  report of                                                               
the OVR.                                                                                                                        
                                                                                                                                
Number 0167                                                                                                                     
                                                                                                                                
STEPHEN BRANCHFLOWER, Director, Office  of Victims' Rights (OVR),                                                               
Alaska  State  Legislature, offered  his  belief  that since  the                                                               
creation  of the  OVR, it  has implemented  [its purpose]  to the                                                               
substantial benefit of crime victims  in Alaska.  He informed the                                                               
committee  that  the  OVR  has   been  staffed  with  experienced                                                               
attorneys and  support staff.  Furthermore,  the things necessary                                                               
to create a viable agency,  such as negotiating a long-term lease                                                               
and establishing  office and case  management systems,  have been                                                               
done.    As  of  today,  376  victims  have  been  served.    Mr.                                                               
Branchflower turned  to the OVR's annual  report, and highlighted                                                               
that  the  OVR has  performed  extensive  community training  and                                                               
outreach.   He  also  highlighted  that the  OVR  has created  an                                                               
informational brochure of which  approximately 15,000 copies have                                                               
been distributed.   Mr. Branchflower  pointed out that if  HB 348                                                               
becomes  law,   it  includes  money  to   print  another  100,000                                                               
informational brochures for distribution.                                                                                       
                                                                                                                                
MR. BRANCHFLOWER  noted that in cooperation  with the Legislative                                                               
Information  Office,  a  very user-friendly  web  site  has  been                                                               
created.  This  web site includes an  extensive explanation about                                                               
the  OVR  and victims'  rights,  a  glossary of  frequently  used                                                               
terms,  an outline  of a  typical criminal  case, and  an on-line                                                               
complaint  form.    The aforementioned  complaint  form  is  very                                                               
beneficial, especially to victims in  the Bush.  Furthermore, the                                                               
OVR has drafted  regulations and those are on the  verge of being                                                               
sent to the Office of the Governor for approval.                                                                                
                                                                                                                                
MR. BRANCHFLOWER concluded by requesting  that the sunset date be                                                               
extended because he  believes the OVR has  demonstrated its value                                                               
to  victims  in  Alaska.    Moreover, the  OVR  has  developed  a                                                               
cooperative  relationship  with  a  number  of  victims'  support                                                               
organizations, including police and  prosecutors.  He, too, noted                                                               
that  there are  some cases  that will  likely extend  beyond the                                                               
July  2006 [sunset  date],  adding  that one  of  the cases  will                                                               
almost certainly go to the Alaska  Supreme Court.  Page 16 of the                                                               
annual   report  discusses   the   aforementioned   case.     Mr.                                                               
Branchflower  urged   the  committee   to  report  HB   534  from                                                               
committee.                                                                                                                      
                                                                                                                                
Number 0469                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG   inquired  as   to  why   a  four-year                                                               
extension was chosen.                                                                                                           
                                                                                                                                
REPRESENTATIVE  SAMUELS answered,  "Short  enough  where you  can                                                               
still have a little  bit of a leash on it,  and long enough where                                                               
you're not doing this again in  another two years."  He indicated                                                               
that [the length of a sunset] is a rather arbitrary number.                                                                     
                                                                                                                                
REPRESENTATIVE   GRUENBERG   relayed   that   many   boards   and                                                               
commissions  seem  to  [sunset]  about  every  four  years.    He                                                               
recalled  that  the  sunset concept  became  popular  during  the                                                               
1970s.  However, many of  these boards and commissions are fairly                                                               
well established.  Representative Gruenberg  opined that a lot of                                                               
legislative   time  is   spent  reviewing   various  boards   and                                                               
commissions.  Although he said he  didn't have a problem with the                                                               
aforementioned, he  suggested that this  may be a point  at which                                                               
the  legislature may  need to  determine how  to spend  its time.                                                               
Therefore, he  suggested a  bit longer length  for the  sunset of                                                               
these organizations.                                                                                                            
                                                                                                                                
REPRESENTATIVE  SAMUELS characterized  Representative Gruenberg's                                                               
comments  as a  "good point."    He informed  the committee  that                                                               
currently, the auditor  is trying to stagger the  [sunset of] all                                                               
boards  and commissions,  but many  are  coming due  at once  and                                                               
overwhelming the audit staff.   The aforementioned results in the                                                               
legislative audits requested by  members of the legislature being                                                               
pushed  to the  bottom.   Representative  Samuels clarified  that                                                               
there is  no audit due for  the OVR, and therefore  won't take up                                                               
the auditor's  time.  He noted  that one option is  to repeal the                                                               
sunset;  however, he  said  he believes  that the  OVR  is a  new                                                               
office that should be on a "shorter leash."                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  inquired  as  to  the  possibility  of                                                               
having an audit for the OVR, just like every other board.                                                                       
                                                                                                                                
REPRESENTATIVE  SAMUELS noted  that an  [audit] request  could be                                                               
made.  However, he expressed the  need to wait a couple years and                                                               
let the OVR be in existence and "get its feet wet."                                                                             
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked if other legislative  boards have                                                               
a statutory requirement for a legislative audit.                                                                                
                                                                                                                                
Number 0710                                                                                                                     
                                                                                                                                
KARLA   SCHOFIELD,  Deputy   Director,  Accounting,   Legislative                                                               
Administrative  Services,  Legislative  Affairs  Agency,  relayed                                                               
that the  OVR is  part of  the legislative  branch, which  has an                                                               
annual financial audit.  Usually,  the Legislative Audit Division                                                               
doesn't audit [entities] in the legislative branch.                                                                             
                                                                                                                                
REPRESENTATIVE GRUENBERG  pointed out  that the other  audits are                                                               
more programmatic, although they  do deal with financial aspects.                                                               
He  said that  he  finds  the audits  for  the  other boards  and                                                               
commissions  extremely  helpful.   Therefore,  he  expressed  the                                                               
desire to  have an audit  for the OVR.   He  asked if there  is a                                                               
reason not to do so.                                                                                                            
                                                                                                                                
REPRESENTATIVE SAMUELS reiterated his desire to wait a year.                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG specified that  he would [want] an audit                                                               
to  occur in  2010  when  the OVR  sunsets.    He indicated  that                                                               
[boards and commissions] usually have an audit when they expire.                                                                
                                                                                                                                
REPRESENTATIVE  SAMUELS  pointed  out  that  the  Office  of  the                                                               
Ombudsman doesn't  have "one at all."   He noted that  the choice                                                               
to him  was in regard  to putting a [sunset]  date on the  OVR or                                                               
not.                                                                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG  opined that it's [appropriate]  to have                                                               
a sunset.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  OGG raised  a point  of order,  relating that  he                                                               
would be happy to hear an amendment [if that is desired].                                                                       
                                                                                                                                
REPRESENTATIVE GRUENBERG  clarified that this is  a discussion to                                                               
determine whether  he wanted to  offer an amendment,  and whether                                                               
it requires a statutory amendment.                                                                                              
                                                                                                                                
REPRESENTATIVE  SAMUELS reiterated  that if  an audit  is desired                                                               
later,  it  can  be  requested through  the  Joint  Committee  on                                                               
Legislative Budget and Audit.                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked if the  audits for all  the other                                                               
boards and commissions occur upon  request of the Joint Committee                                                               
on  Legislative Budget  and Audit  or is  it due  to a  statutory                                                               
requirement.                                                                                                                    
                                                                                                                                
REPRESENTATIVE   SAMUELS   answered   that   the   audits   occur                                                               
automatically upon  the sunset date  of the  entity.  He  said he                                                               
assumes that  the audit  occurs due  to a  statutory requirement.                                                               
If, upon sunset,  a [board or commission] doesn't  have the audit                                                               
for renewal, the board [or commission] goes away.                                                                               
                                                                                                                                
Number 0905                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  moved  that   the  committee  adopt  a                                                               
conceptual  amendment such  that the  same statutory  requirement                                                               
for [the  other boards  and commissions]  be implemented  for the                                                               
OVR.                                                                                                                            
                                                                                                                                
REPRESENTATIVE  SAMUELS  objected.    He explained  that  if  the                                                               
financial audit  is already  occurring, he  didn't want  to place                                                               
the  burden  [on  the  Legislative  Audit  Division]  to  perform                                                               
something  that's already  being  done.   He  reiterated that  if                                                               
someone wants  an audit,  that can be  requested and  the auditor                                                               
and the Legislative  Affairs Agency can be  contacted with regard                                                               
to what  is being sought in  the audit.  He  highlighted that the                                                               
financial audit is already being done, as is the report.                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  explained that he wanted  the same type                                                               
of programmatic audit that is in  place for all the other [boards                                                               
or commissions].                                                                                                                
                                                                                                                                
REPRESENTATIVE SAMUELS  pointed out  that the other  boards don't                                                               
provide an  annual report.   He reiterated  that the OVR  is more                                                               
closely aligned with the Office of the Ombudsman.                                                                               
                                                                                                                                
REPRESENTATIVE GRUENBERG  commented that  he views  a self-report                                                               
as  a bit  different  than an  audit, which  is  performed by  an                                                               
independent agency.  Representative  Gruenberg said he is willing                                                               
to withdraw  the amendment, although  he believes  an independent                                                               
audit is helpful.                                                                                                               
                                                                                                                                
REPRESENTATIVE  SAMUELS stated  that if  Representative Gruenberg                                                               
requests an audit, "we'll push it forward."                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG withdrew the conceptual amendment.                                                                     
                                                                                                                                
Number 1027                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  moved to report  HB 534 out  of committee                                                               
with individual recommendations and  the accompanying zero fiscal                                                               
note.  There being no objection, it was so ordered.                                                                             
                                                                                                                                
HB 472 - CLAIMS AGAINST HEALTH CARE PROVIDERS                                                                                 
                                                                                                                                
Number 1038                                                                                                                     
                                                                                                                                
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE  BILL NO.  472, "An  Act  relating to  claims for  personal                                                               
injury  or  wrongful death  against  health  care providers;  and                                                               
providing for an effective date."                                                                                               
                                                                                                                                
CHAIR  McGUIRE  noted  that [the  committee  packet]  includes  a                                                               
proposed committee substitute  as well as two  amendments.  Chair                                                               
McGuire opined that the committee has  had a lot of good language                                                               
on  the record  with  regard to  the  intent of  HB  472 and  the                                                               
amendments made to it thus far.                                                                                                 
                                                                                                                                
Number 1194                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  moved to  adopt the  proposed committee                                                               
substitute  (CS)  for  HB   472,  Version  23-LS1743\D,  Bullock,                                                               
3/22/04, as the work draft.   There being no objection, Version D                                                               
was before the committee.                                                                                                       
                                                                                                                                
Number 1215                                                                                                                     
                                                                                                                                
REPRESENTATIVE HOLM  moved that the committee  adopt Amendment 1,                                                               
which read [original punctuation provided]:                                                                                     
                                                                                                                                
     Page 2, Line 22, following "death.":                                                                                       
                                                                                                                                
     Insert  "The limits  on damages  in this  subsection do                                                                    
     not apply if the personal  injury or wrongful death was                                                                    
     the result of reckless or intentional misconduct."                                                                         
                                                                                                                                
     Page 2, Line 25, following "judgment":                                                                                     
                                                                                                                                
     Insert "unless  the personal  injury or  wrongful death                                                                    
     was the result of reckless or intentional misconduct"                                                                      
                                                                                                                                
REPRESENTATIVE HOLM said that he  didn't want this legislation to                                                               
be a vehicle  that would allow reckless conduct.   He offered his                                                               
understanding that  the standard  should be clear  and convincing                                                               
evidence,  not  just  negligence,   because  it  "only  takes  51                                                               
percent" to make negligence the charge.                                                                                         
                                                                                                                                
Number 1233                                                                                                                     
                                                                                                                                
REPRESENTATIVE  ANDERSON  objected.    He  requested  that  Roger                                                               
Holmes comment on Amendment 1.                                                                                                  
                                                                                                                                
Number 1277                                                                                                                     
                                                                                                                                
ROGER F. HOLMES, Attorney at Law, Biss & Holmes, said:                                                                          
                                                                                                                                
     If the  amendment read that  ... the limits  on damages                                                                    
     do not  apply in  instances where the  jury has  made a                                                                    
     finding  by  clear  and convincing  evidence  that  the                                                                    
     conduct  was  outrageous,   including  acts  done  with                                                                    
     malice   or   bad   motives   or   evidenced   reckless                                                                    
     indifference to  the interest  of another  person, then                                                                    
     it would follow that  the punitive damage statute would                                                                    
     be compatible and  would be easy for the  judge and the                                                                    
     jury to ... apply the same standard in the same case.                                                                      
                                                                                                                                
REPRESENTATIVE HOLM stated that the above is his intention.                                                                     
                                                                                                                                
CHAIR   McGUIRE   asked   if  Representative   Holm   wanted   to                                                               
conceptually amend Amendment 1 to that effect.                                                                                  
                                                                                                                                
REPRESENTATIVE HOLM replied yes.                                                                                                
                                                                                                                                
CHAIR  McGUIRE  clarified, "So,  ...  it's  clear and  convincing                                                               
evidence and it's  acts that are outrageous, or  done with malice                                                               
or  bad  motive,  evidenced   reckless  indifference  to  another                                                               
person."                                                                                                                        
                                                                                                                                
REPRESENTATIVE ANDERSON surmised, then,  that the punitive damage                                                               
standard would be in place.                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  further  clarified  that  the  standard  will  be                                                               
applied to punitive damages as well as noneconomic damages.                                                                     
                                                                                                                                
[Amendment 1 was treated as amended.]                                                                                           
                                                                                                                                
REPRESENTATIVE ANDERSON withdrew his objection.                                                                                 
                                                                                                                                
Number 1392                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  objected and suggested [a  second] amendment                                                               
to  Amendment   1  [as  amended]   such  that  the   term  "gross                                                               
negligence" is included.                                                                                                        
                                                                                                                                
REPRESENTATIVE GARA  explained that  if the  only way  to recover                                                               
more than $250,000  in damages from loss of enjoyment  of life is                                                               
by clear and convincing evidence  of recklessness or malice, then                                                               
the committee  would be adopting  a standard that has  never been                                                               
met  before in  a medical  malpractice case  in this  state.   He                                                               
opined  that there  has  never  been a  finding  of the  punitive                                                               
damages standard in Alaska, and  he further opined that there has                                                               
never  been   a  finding  of   punitive  damages  in   a  medical                                                               
malpractice case  in this state.   Therefore, [with  the adoption                                                               
of  this  amendment], the  only  serious  injuries that  will  be                                                               
granted more  than $250,000  in noneconomic  damages are  ones in                                                               
which a physician has engaged in  malice, or a condition in which                                                               
a  physician  recklessly  disregards  his or  her  duties.    The                                                               
aforementioned will result  in the $250,000 cap  being imposed in                                                               
a case in  which someone is brain  injured, severely handicapped,                                                               
severely paralyzed, or totally paralyzed.   Such situations would                                                               
occur  when the  physician  has  violated the  duty  to act  with                                                               
reasonable care.                                                                                                                
                                                                                                                                
REPRESENTATIVE  GARA  explained  that  [a  medical  professional]                                                               
isn't found  negligent in  a medical  malpractice case  in Alaska                                                               
unless a physician  has failed to adhere to the  standard of care                                                               
exercised by other  physicians in the community.   In those cases                                                               
in  which  a physician  has  performed  negligently, injured  the                                                               
patient, and  hasn't adhered to  the standard of care  adhered to                                                               
by  other physicians  in the  community,  [the legislation]  only                                                               
allows  recovery of  $250,000  in noneconomic  damages.   If  the                                                               
aforementioned is to  be the case, Representative  Gara said that                                                               
he  preferred  Representative  Ogg's amendment,  which  specifies                                                               
that the  cap doesn't apply  in cases of recklessness  or malice.                                                               
He reiterated  his desire  to remove  the cap  in cases  of gross                                                               
negligence,  which is  a high  standard  itself.   Representative                                                               
Gara  said that  he didn't  want a  physician performing  work on                                                               
members of  the community  when the  physician doesn't  adhere to                                                               
the  standard  of   care  of  other  physicians,   which  is  the                                                               
negligence standard.                                                                                                            
                                                                                                                                
Number 1548                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA moved  that the  committee adopt  [a second]                                                               
amendment to  Amendment 1  [as amended],  such that  the language                                                               
"grossly negligent" would be added.                                                                                             
                                                                                                                                
REPRESENTATIVE  OGG  objected.    Representative  Ogg  asked  Mr.                                                               
Holmes if the difference between  negligence and gross negligence                                                               
is  easily  defined.    He  asked if  the  clear  and  convincing                                                               
standard  for   gross  negligence  is  enough   "to  clarify  the                                                               
difference  or clarify  that you  really  have to  get into  this                                                               
higher  category;  that's  what  we're   trying  to  do  here,  I                                                               
believe."                                                                                                                       
                                                                                                                                
MR. HOLMES  answered that the  difference between  negligence and                                                               
gross negligence  is difficult to  define, which is why  the 1997                                                               
legislature  adopted the  language it  did for  punitive damages.                                                               
He  explained that  the  problem  is that  there  would be  three                                                               
separate  standards:    one  for  negligence;  one  for  punitive                                                               
damages;  and  one   for  when  the  cap  doesn't   apply.    The                                                               
aforementioned,  he further  explained, builds  in the  chance of                                                               
error in every  case that goes to  the jury.  The  reason to make                                                               
the exception  to the cap  match the punitive damage  standard is                                                               
that  then there  would clearly  be two  standards that  would be                                                               
given  to the  jury.   Conceptually, Mr.  Holmes said  he had  no                                                               
problem with Representative Gara's  comments with regard to gross                                                               
negligence as opposed to the  punitive damage standard.  However,                                                               
in  order  to  accomplish  what Representative  Gara  wants,  the                                                               
legislation  would  require  the  jury to  apply  three  separate                                                               
standards.  He noted that it's  already difficult for the jury to                                                               
apply two.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  OGG  inquired  as   to  defining  the  difference                                                               
between  reckless  disregard,  reckless indifference,  and  gross                                                               
negligence.                                                                                                                     
                                                                                                                                
MR.  HOLMES opined  that most  jurors that  would find  something                                                               
that was  grossly negligent  would also  find something  that was                                                               
reckless.  He  offered his opinion that a  physician who operates                                                               
while intoxicated would  be grossly negligent and  he opined that                                                               
most jurors wouldn't have a  problem with the [finding] that this                                                               
is reckless  indifference to the  interests of the patient.   Mr.                                                               
Holmes said he believes the  definition of gross negligence is so                                                               
close  to  reckless  indifference  that  having  three  different                                                               
standards in each case invites  error and confusion.  He remarked                                                               
that  although  he  did  believe there  is  a  slight  difference                                                               
between  gross   negligence  and  reckless   [indifference],  the                                                               
difference  is   probably  less  than  there   is  between  gross                                                               
negligence and ordinary negligence.                                                                                             
                                                                                                                                
REPRESENTATIVE OGG  said that  that was  his intent,  to separate                                                               
[gross negligence and reckless indifference],  in having made his                                                               
amendment at  a previous meeting.   Representative  Ogg indicated                                                               
that [gross negligence and reckless  indifference] is the type of                                                               
action [this  legislation] wants to avoid,  although the language                                                               
"reckless indifference" is  used.  "Because we have  to have only                                                               
two standards  to clarify it,  then I'm comfortable with  that as                                                               
long ... [as] somebody can come  and look at this and say, 'We're                                                               
not  going after  just the  negligent person;  we're going  after                                                               
that   higher  [standard]   and  we   don't  want   those  people                                                               
protected,'" he explained.                                                                                                      
                                                                                                                                
Number 1759                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE informed  the committee  that in  Alaska, reckless                                                               
[indifference] has been interpreted  as "a conscious disregard of                                                               
a  known  risk"  while  Black's   Law  dictionary  defines  gross                                                               
negligence  as "the  intentional  failure to  perform a  manifest                                                               
duty in reckless disregard of  the consequences."  Therefore, she                                                               
opined, the two are almost identical [definitions].                                                                             
                                                                                                                                
REPRESENTATIVE  ANDERSON  offered   his  understanding  that  Mr.                                                               
Holmes  is  acknowledging that  there  is  a difference  [between                                                               
reckless indifference and gross negligence].                                                                                    
                                                                                                                                
MR. HOLMES  reiterated that if  the gross negligence  standard is                                                               
added,  then the  juror is  being asked  to apply  three separate                                                               
standards.   However, he opined, the  difference between reckless                                                               
[indifference]  and  gross  [negligence]  is so  small  that  the                                                               
benefit  [of   listing  both]  doesn't   outweigh  the   risk  of                                                               
confusion.                                                                                                                      
                                                                                                                                
REPRESENTATIVE GARA said  he isn't convinced that  the jury would                                                               
be so  confused.   In many cases,  especially in  criminal cases,                                                               
the jury  receives instructions on  10-15 different counts.   The                                                               
courts maintain  clarity by providing  a separate  instruction on                                                               
each  issue.   Normally,  a  packet  of jury  instructions  could                                                               
contain  20-50 instructions  or even  more.   Representative Gara                                                               
offered his understanding that there  is already a patterned jury                                                               
instruction for gross negligence, and asked if that is true.                                                                    
                                                                                                                                
MR. HOLMES replied,  "Not since '97 when ...  the punitive damage                                                               
statute was amended."                                                                                                           
                                                                                                                                
REPRESENTATIVE GARA  recalled seeing jury instructions  for gross                                                               
negligence.    Therefore,  he  asked if  that  is  because  gross                                                               
negligence is defined in the criminal statutes.                                                                                 
                                                                                                                                
MR. HOLMES explained that gross  negligence has been the punitive                                                               
damage  standard for  years.   He  noted that  there are  several                                                               
supreme court opinions  that discuss what it took  to reach gross                                                               
negligence and  what it  meant, although those  are no  longer in                                                               
effect.   Mr. Holmes recalled  that many of those  decisions were                                                               
authored  by Justice  Robert L.  Eastaugh of  the Alaska  Supreme                                                               
Court, and  the term "gross  negligence" was defined  as reckless                                                               
indifference.     In  the  supreme   court  opinions,   the  term                                                               
"recklessness" was used in defining gross negligence.                                                                           
                                                                                                                                
REPRESENTATIVE  GARA  offered his  belief  that  the term  "gross                                                               
negligence" is defined  in the statutes because  that standard is                                                               
used  in many  criminal cases.   He  inquired as  to Mr.  Holmes'                                                               
understanding.                                                                                                                  
                                                                                                                                
MR. HOLMES said he can't answer that question.                                                                                  
                                                                                                                                
REPRESENTATIVE  GARA  returned  to   the  [second]  amendment  to                                                               
Amendment  1 [as  amended].   He  remarked that  if the  reckless                                                               
standard is  adopted, the  standard will  almost never  result in                                                               
someone getting more  than the $250,000 damages  cap.  Therefore,                                                               
he said  the [committee]  might as well  just adopt  the $250,000                                                               
damages cap.   Representative Gara highlighted his  belief in the                                                               
importance  of preserving  the  rights of  people  who have  been                                                               
terribly injured by conduct that  simply falls to the standard of                                                               
not  exercising  the same  care  that  other physician's  in  the                                                               
community exercise.                                                                                                             
                                                                                                                                
CHAIR McGUIRE noted that the  objection to the [second] amendment                                                               
to Amendment 1 [as amended] is maintained.                                                                                      
                                                                                                                                
Number 1964                                                                                                                     
                                                                                                                                
A roll call  vote was taken.  Representatives  Gara and Gruenberg                                                               
voted  in favor  of the  [second]  amendment to  Amendment 1  [as                                                               
amended].   Representatives  Ogg,  Samuels,  Holm, Anderson,  and                                                               
McGuire voted  against it.   Therefore,  the second  amendment to                                                               
Amendment 1 [as amended] failed by a vote of 2-5.                                                                               
                                                                                                                                
CHAIR  McGUIRE  announced that    Amendment  1 [as  amended]  was                                                               
before  the committee.   Chair  McGuire,  upon determining  there                                                               
were  no further  objections,  announced that    Amendment 1  [as                                                               
amended] was adopted.                                                                                                           
                                                                                                                                
Number 1989                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  moved that the committee  adopt Amendment 2,                                                               
labeled 23-LS1743\A.6, Bullock, 3/22/04,which read:                                                                             
                                                                                                                                
     Page 2, line 19, following $250,000:                                                                                       
          Insert ", except that the limit on damages is                                                                         
       $1,000,000 if it is shown, by clear and convincing                                                                       
      evidence, that the injury is a serious debilitating                                                                       
     physical injury or disfigurement.  Each limit applies"                                                                     
                                                                                                                                
     Page 2, line 25:                                                                                                           
          Delete "$250,000"                                                                                                     
          Insert "the limit in (d) of this section"                                                                             
                                                                                                                                
Number 1992                                                                                                                     
                                                                                                                                
REPRESENTATIVE ANDERSON objected.                                                                                               
                                                                                                                                
REPRESENTATIVE  GARA  recalled  that  there was  a  concern  with                                                               
regard  to the  dual cap,  that is  a higher  cap for  those with                                                               
serious  debilitating injuries  and  a lower  cap  for those  who                                                               
don't have  serious debilitating  injuries or disfigurement.   He                                                               
recalled  that Representative  Holm inquired  as to  what can  be                                                               
done  to  ensure  that  those with  marginal  claims  of  serious                                                               
disfigurement or  serious debilitating injury proceed  with their                                                               
claims.  The  aforementioned has been accomplished in  the law by                                                               
specifying that in those circumstances,  the evidence is required                                                               
to be  proven by clear  and convincing evidence, which  will weed                                                               
out the marginal claims.                                                                                                        
                                                                                                                                
REPRESENTATIVE  GARA offered  his  understanding  that clear  and                                                               
convincing evidence  is defined in  case law as follows:   "clear                                                               
and  convincing evidence  means and  is that  amount of  evidence                                                               
which produces in  the trier of fact a firm  belief or conviction                                                               
about  the existence  of a  fact to  be proved."   Representative                                                               
Gara noted  that sometimes  the court will  tell jurors  that the                                                               
evidence  has to  be  much  higher than  a  preponderance of  the                                                               
evidence  but not  as high  as proof  beyond a  reasonable doubt.                                                               
"It's  a  high level  of  evidence,  it's  used in  the  punitive                                                               
damages  statute  ... and  that's  why  punitive damages  are  so                                                               
rarely  granted," he  said.   Furthermore, [clear  and convincing                                                               
evidence] is a good bar to [avoid] marginal claims.                                                                             
                                                                                                                                
REPRESENTATIVE GARA pointed out that  although the committee at a                                                               
prior meeting  adopted the  $1 million cap,  the term  "clear and                                                               
convincing evidence" wasn't  included.  He explained  that he has                                                               
been convinced that in order  to make the system more predictable                                                               
so that  we know the  higher cap is only  to be applied  to those                                                               
with  valid  claims, the  term  "clear  and convincing  evidence"                                                               
should be  included in the dual  cap structure.  He  reminded the                                                               
committee that the  $250,000 cap works out to about  $13.59 a day                                                               
for the value of one's enjoyment  of life and pain and suffering,                                                               
which Representative Gara opined isn't right.                                                                                   
                                                                                                                                
REPRESENTATIVE  GARA recalled  that  Representative Anderson  has                                                               
said that it  wouldn't really be $13.59 a day  because that money                                                               
can be  placed in an annuity.   However, he opined,  the truth is                                                               
that one-third  of a $250,000 award  would go to pay  taxes, one-                                                               
third would pay  for attorney fees, and anyone other  than a rich                                                               
person wouldn't be able to place the remaining funds into an 30-                                                                
year annuity.   Representative Gara emphasized that  $13.59 a day                                                               
for someone  suffering from  a brain injury  due to  medical care                                                               
that falls below the standard of  care of other physicians in the                                                               
community  is too  low.   He  remarked  that although  physicians                                                               
don't  agree  with  Amendment  2,   it  provides  two  levels  of                                                               
certainty that physicians  have requested.  That  certainty is in                                                               
the  form  of  the $1  million  hard  cap  with  a lower  cap  of                                                               
$250,000.   Currently, there is a  soft cap of [$400,000]  and $1                                                               
million, which  might turn out  to be [$800,000] and  $2 million.                                                               
"So we're coming  down to hard caps:  $250,000  and [$1] million,                                                               
and  we're only  extending it  to very  limited cases  of serious                                                               
injury  that  is  validly  provable  with  clear  and  convincing                                                               
evidence,"  he  explained.   Representative  Gara  requested  the                                                               
committee's support of Amendment 2.                                                                                             
                                                                                                                                
Number 2133                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  moved  that  the  committee  adopt  an                                                               
amendment to Amendment  2 adding the following language:   "or if                                                               
the defendant  acts with  criminal negligence  as defined  in [AS                                                               
04.21.080(a)(1)]",  after the  word "disfigurement"  in Amendment                                                               
2.    He  informed  the   committee  that  [the  language  he  is                                                               
suggesting adding  to Amendment 2] is  a long-standing definition                                                               
in the alcoholic beverages title that reads:                                                                                    
                                                                                                                                
     a person  acts with "criminal negligence"  with respect                                                                    
     to  a  result  or  to a  circumstance  described  by  a                                                                    
     provision of  law defining an  offense when  the person                                                                    
     fails to perceive a  substantial and unjustifiable risk                                                                    
     that  the result  will occur  or that  the circumstance                                                                    
     exists; the  risk must be  of such a nature  and degree                                                                    
     that  the failure  to perceive  it constitutes  a gross                                                                    
     deviation from  the standard of care  that a reasonable                                                                    
     person would observe in the situation;                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  said  that  he  accepts  the  amendment  to                                                               
Amendment 2.   However,  he pointed  out that  physicians benefit                                                               
from  a much  stricter  standard of  negligence  than do  others.                                                               
Therefore,  in order  to be  fair  to the  medical community,  he                                                               
suggested  inserting  the  language "to  [a]  reasonable  medical                                                               
practitioner in the area".                                                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG suggested  also inserting  the language                                                               
", except that  the term 'reasonable person'  shall be reasonable                                                               
medical practitioner in the field".                                                                                             
                                                                                                                                
REPRESENTATIVE GARA said that he  accepted the [second] amendment                                                               
to Amendment 2.                                                                                                                 
                                                                                                                                
CHAIR McGUIRE announced that the  [amendments] to Amendment 2 are                                                               
adopted, adding that  Amendment 2, as amended, is  now before the                                                               
committee.                                                                                                                      
                                                                                                                                
Number 2257                                                                                                                     
                                                                                                                                
REPRESENTATIVE ANDERSON  maintained his  objection.   He recalled                                                               
Representative  Holm's concern  that  if someone  is reckless  or                                                               
intentionally  does something,  then that  [medical professional]                                                               
should be  liable and there  shouldn't be a cap.   Representative                                                               
Anderson surmised  that Representative Holm  saw the caps  as the                                                               
only way to correct it.                                                                                                         
                                                                                                                                
REPRESENTATIVE  ANDERSON offered  the following  analogy:   "When                                                               
you go  out on the  street and you  ask a  senior ... is  it more                                                               
important  for you  to  have  medical care  and  treatment or  to                                                               
ensure that out of 10,000 times,  the one time when you ... think                                                               
there  was  an egregious  act  by  a  doctor,  you can  get  over                                                               
$250,000 pain  and suffering, ...  that senior ... would  say, 'I                                                               
want  medical  coverage.'"   Representative  Anderson  said  that                                                               
[this legislation]  brings predictability  with the  $250,000 cap                                                               
and  emulates  California,  which  Alaska's  courts  as  well  as                                                               
federal courts constantly reference.   California is a state with                                                               
a  cap that  has been  successful and  brought in  physicians and                                                               
recruited physicians, he  opined, and said he wants  the same for                                                               
Alaska, which  is why he  sponsored HB  472.  Increasing  the cap                                                               
changes that and removes the predictability.                                                                                    
                                                                                                                                
TAPE 04-44, SIDE B                                                                                                            
Number 2378                                                                                                                     
                                                                                                                                
REPRESENTATIVE  ANDERSON emphasized  that  he defers  to all  the                                                               
associations,  hospitals, and  physicians that  have endorsed  HB
472, but who [oppose] this  amendment and want the legislation to                                                               
move from committee to the House floor.                                                                                         
                                                                                                                                
REPRESENTATIVE OGG specified that  he is supportive of [Amendment                                                               
2] without the  amendments.  He characterized  [the amendments to                                                               
Amendment  2]   as  redundant.    Through   the  discussion,  the                                                               
committee has  decided that those  who act intentionally  or with                                                               
reckless  disregard  aren't  subject  to this  cap.    Therefore,                                                               
[amending Amendment 2]  is confusing because it  has already been                                                               
addressed.     Representative  Ogg  opined  that   he  likes  the                                                               
differentiation  in   the  caps,   which  he   believes  provides                                                               
predictability.    Therefore,  Representative Ogg  said  that  he                                                               
would have to oppose Amendment 2, as amended.                                                                                   
                                                                                                                                
REPRESENTATIVE  GARA   recalled  that  when  the   amendments  to                                                               
Amendment 2 were offered, there  didn't seem to be any objection.                                                               
However,  if  there  is  an  objection  to  the  [amendments]  to                                                               
Amendment   2,  then   he  would   also  withdraw   his  support.                                                               
Therefore,  he requested  that Representative  Gruenberg withdraw                                                               
his amendments to Amendment 2.                                                                                                  
                                                                                                                                
Number 2235                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  moved that  the committee  withdraw the                                                               
language  of the  amendments to  Amendment 2  such that  it would                                                               
read as  follows [which is  identical to the  original, unamended                                                               
Amendment 2]:                                                                                                                   
                                                                                                                                
     Page 2, line 19, following $250,000:                                                                                       
          Insert ", except that the limit on damages is                                                                         
       $1,000,000 if it is shown, by clear and convincing                                                                       
      evidence, that the injury is a serious debilitating                                                                       
     physical injury or disfigurement.  Each limit applies"                                                                     
                                                                                                                                
     Page 2, line 25:                                                                                                           
          Delete "$250,000"                                                                                                     
          Insert "the limit in (d) of this section"                                                                             
                                                                                                                                
REPRESENTATIVE HOLM objected.                                                                                                   
                                                                                                                                
REPRESENTATIVE ANDERSON asked Chair  McGuire not to allow further                                                               
amendments  to  change the  limits  should  this amendment  fail,                                                               
otherwise, he said, he felt that the chair would be dilatory.                                                                   
                                                                                                                                
REPRESENTATIVE GARA  stated, "If  we're going  to pass  this bill                                                               
out of  this committee, it  should be done  without gamesmanship.                                                               
Certainly,  I understand  the Representative's  view  that if  we                                                               
kill  the amendment  with the  amendment to  the amendment,  then                                                               
we'll never  have to vote on  the amendment."  Therefore,  if the                                                               
amendments  to Amendment  2  are  left in  just  to  kill it,  he                                                               
announced that he would offer  a clean amendment.  Representative                                                               
Gara opined  that it would fair  for that to be  heard.  However,                                                               
he  suggested that  it would  be quicker  to delete  the language                                                               
inserted by Representative Gruenberg.                                                                                           
                                                                                                                                
Number 2165                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HOLM  withdrew  his  objection  to  removing  the                                                               
language inserted by the [amendments] to Amendment 2.                                                                           
                                                                                                                                
CHAIR  McGUIRE,  upon  determining  that there  were  no  further                                                               
objections, announced  that the  [amendments] to Amendment  2 had                                                               
been removed.   Therefore,  the question of  whether to  adopt an                                                               
unamended Amendment 2, was before the committee.                                                                                
                                                                                                                                
Number 2147                                                                                                                     
                                                                                                                                
A  roll call  vote was  taken.   Representatives  Ogg, Gara,  and                                                               
Gruenberg  voted  in  favor  of  Amendment  2.    Representatives                                                               
Samuels,   Holm,  Anderson,   and  McGuire   voted  against   it.                                                               
Therefore, Amendment 2 failed by a vote of 3-4.                                                                                 
                                                                                                                                
Number 2106                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GRUENBERG  moved   that   the  committee   adopt                                                               
Amendment 3  [labeled 23-LS1743\A.5, Bullock, 3/16/04,  which was                                                               
formerly failed Amendment 6 to  the original version on 3/19/04],                                                               
which read as follows:                                                                                                          
                                                                                                                                
     Page 2, following line 27:                                                                                                 
     Insert a new subsection to read:                                                                                           
          "(g)  The limitation on damages under (d) of this                                                                     
        section shall be adjusted by the administrative                                                                         
      director of the Alaska Court System on October 1 of                                                                       
     each year,  calculated to the nearest  whole percentage                                                                    
     point between  the index for  January of that  year and                                                                    
     January  of the  prior year  according to  the Consumer                                                                    
     Price Index  for all urban consumers  for the Anchorage                                                                    
     metropolitan  area  compiled  by the  Bureau  of  Labor                                                                    
     Statistics,  United States  Department of  Labor.   The                                                                    
     administrative  director  of  the Alaska  Court  System                                                                    
     shall  provide   notification  of   a  change   in  the                                                                    
     limitation of  damages to the  clerks of court  in each                                                                    
     judicial  district  of  the state.    The  court  shall                                                                    
     adjust  the award  for noneconomic  damages under  this                                                                    
     subsection  and  (e)  of this  section,  if  necessary,                                                                    
     before the entry of judgment."                                                                                             
                                                                                                                                
The committee took an at-ease from 2:13 p.m. to 2:14 p.m.                                                                       
                                                                                                                                
Number 2079                                                                                                                     
                                                                                                                                
REPRESENTATIVE ANDERSON objected.                                                                                               
                                                                                                                                
CHAIR McGUIRE pointed  out that these Consumer  Price Index (CPI)                                                               
amendments are frequently  offered.  If there could  be this type                                                               
of certainty with all of the  things that each person cares about                                                               
in the budget, it would be  great.  However, that's not the case.                                                               
Chair   McGuire   explained   that   the   legislature,   as   an                                                               
appropriating  body, needs  the  ability to  have  some sense  of                                                               
predictability.  When a CPI  index clause is added into something                                                               
that a private individual or a  public entity has to pay, a level                                                               
of uncertainty  is created.   Therefore,  she suggested  that the                                                               
appropriate  course  would be  to  revisit  this in  a  specified                                                               
amount  of  time.    Chair  McGuire turned  to  the  issue  of  a                                                               
certificate of  need.  She  noted that  the $1 million  limit put                                                               
into effect in the 1970s is  no longer applicable because the CPI                                                               
would place  it closer  to $2  million.   She indicated  that she                                                               
didn't support Amendment 3.                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG specified  that he  has reoffered  this                                                               
amendment because  two of  the members  of the  committee weren't                                                               
present when it was initially  offered, and more importantly, the                                                               
legislation  now  includes  caps  again.    He  turned  to  Chair                                                               
McGuire's  comments,  and remarked  that  there  is a  difference                                                               
between putting  this into a  budget or a public-funding  type of                                                               
thing  because  those  are  the kinds  of  legislation  that  the                                                               
legislature  is  involved with  on  an  annual basis.    However,                                                               
medical  malpractice is  not [reviewed  by the  legislature every                                                               
year].                                                                                                                          
                                                                                                                                
REPRESENTATIVE  GRUENBERG stated  that medical  malpractice is  a                                                               
very divisive  issue, albeit not  a common  issue.  If  limits in                                                               
this area have to be changed,  the arguments are in regard to the                                                               
impacts  of raising  the  limits on  the  availability of  health                                                               
insurance  and the  number of  physicians and  other health  care                                                               
professionals to  practice in the state.   On the other  hand, an                                                               
automatic  adjustment  for  cost  of  living  is  something  that                                                               
insurance companies  deal with frequently.   Furthermore,  it's a                                                               
measure  of  certainty  because   actuaries  and  economists  are                                                               
accustomed to dealing with it.   "It does not require that we re-                                                               
open  the  entire  issue  of  medical  malpractice  and  get  the                                                               
legislature  embroiled in  this," he  explained.   This amendment                                                               
attempts  to   provide  an  area   of  certainty  so   that  [the                                                               
legislature] doesn't have to go  through the "medical malpractice                                                               
trauma" every few years.                                                                                                        
                                                                                                                                
Number 1850                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGG agreed that there  is a difference between the                                                               
annual budget  and funding  and including the  CPI.   He recalled                                                               
that the  [CPI] was  put "into  labor" with  regard to  those who                                                               
[pay]  minimum wage.   Very  shortly, the  argument was  that the                                                               
unforeseen  cost [of  the  CPI]  was putting  some  folks out  of                                                               
business.    Representative Ogg  turned  to  criminal fines,  and                                                               
pointed out that  those are set and then revisited  at some point                                                               
when the  pressure rises.   He  recalled recent  [legislation] in                                                               
which the  limit for small claims  court was decided and  the CPI                                                               
wasn't  put in  place for  it.   Representative Ogg  acknowledged                                                               
that  insurance companies  want certainty,  and highlighted  that                                                               
currently,  the legislature  is  wrestling with  a  change in  an                                                               
actuarial  status on  mortality such  that the  Public Employees'                                                               
Retirement System  (PERS) and  Teachers' Retirement  System (TRS)                                                               
programs  have  become one  of  the  larger difficulties  in  the                                                               
state's fiscal problems.                                                                                                        
                                                                                                                                
REPRESENTATIVE OGG indicated  that he would prefer  to leave [the                                                               
legislation]  as  it is  and  when  times  and the  economy  have                                                               
changed,  the legislature  at  the  time could  address  it.   He                                                               
acknowledged   that  the   arguments   [made  by   Representative                                                               
Gruenberg]  will come  up and  he  indicated that  those are  the                                                               
proper arguments  to be  visited each time  this comes  up rather                                                               
than  being   addressed  by   a  standard   that's  out   of  the                                                               
legislature's  hands.   Representative Ogg  expressed his  desire                                                               
for the  legislature to  not foreclose its  ability to  deal with                                                               
these issues on behalf of  the public.  Therefore, Representative                                                               
Ogg announced that he wouldn't support Amendment 3.                                                                             
                                                                                                                                
Number 1663                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  commented  that  in the  context  of  those                                                               
debates, the  legislature has  never done  anything as  severe as                                                               
what is  being done  today.   In the case  of fines,  the minimum                                                               
wage,  and other  limits, the  legislature has  developed numbers                                                               
that  are  within  a  broad  range of  something  that  is  fair.                                                               
However, [this legislation] values a  human life at $250,000.  He                                                               
said  he didn't  believe anyone  on the  committee believes  that                                                               
$250,000 is  a fair value of  someone's ability to hold  a child,                                                               
kiss a spouse,  walk, hike, and fish.  "I  think what we're doing                                                               
is,  the policy  judgment on  this  committee has  been that  the                                                               
insurance industry needs this --  the insurance industry needs us                                                               
to take these rights away from human beings.                                                                                    
                                                                                                                                
REPRESENTATIVE GARA opined that because  nobody says that this is                                                               
a fair  amount of money to  give to people, not  adopting the CPI                                                               
adds  insult   to  injury  because   it  means  that   today  the                                                               
aforementioned life attributes are worth  $13.69 a day, and those                                                               
will be  worth less each year  thereafter.  "So, I  think the CPI                                                               
argument  becomes  much  more  forceful in  a  case  where  we're                                                               
already  inadequately compensating  somebody," he  remarked.   He                                                               
concluded by announcing that he would vote for Amendment 3.                                                                     
                                                                                                                                
CHAIR McGUIRE thanked  Representative Ogg for his  comments.  She                                                               
highlighted  that  it's  important  to  consider  that  sometimes                                                               
something could  be used  as a  method of  achieving a  goal that                                                               
wasn't achieved through the regular  process, which is similar to                                                               
what happened  with the minimum  wage.  Chair  McGuire encouraged                                                               
the committee to look at the  [addition of the CPI] on its merits                                                               
versus using  it to reach another  policy goal.  She  pointed out                                                               
that business license  fees were $25 for almost  20 years without                                                               
the CPI,  which certainly would've  been a benefit for  the state                                                               
and  a potential  hardship  to businesses.    Finally, there  was                                                               
debate on  that last  year and the  successful argument  was that                                                               
the business license  fee hadn't been altered in some  time.  She                                                               
noted  her expectation  that such  arguments will  be made  about                                                               
this legislation some time in the future.                                                                                       
                                                                                                                                
REPRESENTATIVE ANDERSON maintained his objection.                                                                               
                                                                                                                                
Number 1553                                                                                                                     
                                                                                                                                
A roll call  vote was taken.  Representatives  Gara and Gruenberg                                                               
voted in  favor of Amendment  3 [labeled  23-LS1743\A.5, Bullock,                                                               
3/16/04].   Representatives  Ogg,  Samuels,  Holm, Anderson,  and                                                               
McGuire voted  against it.   Therefore, Amendment  3 failed  by a                                                               
vote of 2-5.                                                                                                                    
                                                                                                                                
Number 1520                                                                                                                     
                                                                                                                                
REPRESENTATIVE ANDERSON  moved to report  the proposed CS  for HB
472, Version  23-LS1743\D, Bullock,  3/22/04, as amended,  out of                                                               
committee  with individual  recommendations and  the accompanying                                                               
zero fiscal notes.                                                                                                              
                                                                                                                                
Number 1509                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA objected.                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG   noted  that  he  can't   support  the                                                               
legislation, but  reminded the  committee that  he'd agreed  at a                                                               
prior meeting that he wouldn't object to moving it.                                                                             
                                                                                                                                
Number 1455                                                                                                                     
                                                                                                                                
A roll call vote was  taken.  Representatives Ogg, Samuels, Holm,                                                               
Anderson, and  McGuire voted in  favor of reporting  the proposed                                                               
CS  for  HB  472,  Version   23-LS1743\D,  Bullock,  3/22/04,  as                                                               
amended.   Representative Gara voted against  it.  Representative                                                               
Gruenberg abstained  from voting  but wished  his presence  to be                                                               
noted for the record.   Therefore, CSHB 472(JUD) was reported out                                                               
of the House Judiciary Standing Committee by a vote of 5-1-1.                                                                   
                                                                                                                                
HB 273 - PARENTS' WAIVER OF CHILD'S SPORTS CLAIM                                                                              
                                                                                                                                
Number 1424                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be SPONSOR  SUBSTITUTE FOR HOUSE  BILL NO. 273, "An  Act relating                                                               
to the right  of a parent to waive a  child's claim of negligence                                                               
against a provider of sports or recreational activities."                                                                       
                                                                                                                                
The committee took an at-ease from 2:24 p.m. to 2:25 p.m.                                                                       
                                                                                                                                
Number 1402                                                                                                                     
                                                                                                                                
VANESSA  TONDINI, Staff  to Representative  Lesil McGuire,  House                                                               
Judiciary   Standing   Committee,   Alaska   State   Legislature,                                                               
explained,  on behalf  of  the  sponsor, Representative  McGuire,                                                               
that  SSHB  273  gives  legal   effect  to  release  waivers  and                                                               
permission slips, such as those giving a child the ability to                                                                   
participate in some activity.                                                                                                   
                                                                                                                                
Number 1351                                                                                                                     
                                                                                                                                
REPRESENTATIVE HOLM moved to adopt the proposed committee                                                                       
substitute (CS) for SSHB 273, Version 23-LS0966\I, Bullock,                                                                     
3/19/04, as the work draft.                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG objected, but ultimately removed his                                                                   
objection once it was clarified that Ms. Tondini was going to                                                                   
explain [Version I].                                                                                                            
                                                                                                                                
CHAIR McGUIRE announced that Version I was before the committee.                                                                
                                                                                                                                
MS. TONDINI paraphrased from the sponsor statement, which read                                                                  
[original punctuation provided]:                                                                                                
                                                                                                                                
     Children  in  the  State of  Alaska  should  enjoy  the                                                                    
     maximum  opportunity   to  participate  in   sports  or                                                                    
     recreational activities,  despite the presence  of risk                                                                    
     in  such activities.   Public,  private, and  nonprofit                                                                    
     entities   that   provide    sports   or   recreational                                                                    
     activities to  children need and  deserve a  measure of                                                                    
     protection against  lawsuits, and without  that measure                                                                    
     of protection,  may be unwilling  or unable  to provide                                                                    
     such activities.  Parents have  a fundamental right and                                                                    
     responsibility to  make decisions concerning  the care,                                                                    
     custody, and  control of their  children.  The  law has                                                                    
     long presumed that parents are  in the best position to                                                                    
     determine  what  is  in the  best  interests  of  their                                                                    
     children.   Parents are accustomed to  making conscious                                                                    
     choices  on   behalf  of   their  children   every  day                                                                    
     regarding the benefits and  risks of various activities                                                                    
     available to  their children.   Such  parental choices,                                                                    
     when   made    voluntarily   upon    consideration   of                                                                    
     appropriate  information, should  not  be ignored,  but                                                                    
     rather should  be afforded the  same dignity  and legal                                                                    
     effect  as other  parental  choices, including  choices                                                                    
     regarding education  and medical  treatment.   SSHB 273                                                                    
     furthers these truisms  and encourages the availability                                                                    
     and   affordability   of    sports   and   recreational                                                                    
     activities to  children by recognizing  the right  of a                                                                    
     parent to  choose to release,  on behalf of his  or her                                                                    
     child,  prospective negligence  based  claims that  the                                                                    
     child  may   accrue  against   the  provider   of  such                                                                    
     activities.                                                                                                                
                                                                                                                                
     As a  result of a  recent Colorado Supreme  Court case,                                                                    
     Cooper v.  Aspen Skiing Co., wherein  the Court refused                                                                  
     to uphold or  recognize the mother of  a seventeen year                                                                    
     old skier's signature  on a release document  used in a                                                                    
     juvenile race  camp program,  the outdoor  industry has                                                                    
     been  trying  to respond  to  the  myriad problems  and                                                                    
     potentially  severe   ramifications  created   by  this                                                                    
     holding.   The  faulty  rationale  behind Colorado  and                                                                    
     other  western states'  decisions  has  been the  legal                                                                    
     premise  that,   since  a  minor  is   not  capable  of                                                                    
     releasing his or her own  rights to sue because a minor                                                                    
     is  not  legally  competent  to  contract  and  release                                                                    
     documents  that  are  contractual  in  nature,  that  a                                                                    
     parent should not be capable  of releasing on behalf of                                                                    
     the minor child.                                                                                                           
                                                                                                                                
     This  erroneous  rationale is  contrary  to  a body  of                                                                    
     authority derived  from Midwestern and  Eastern states,                                                                    
     which  find  that  parents  do  specifically  have  the                                                                    
     legally  binding right  to  sign  release documents  on                                                                    
     behalf of their  minor children.  In  these states, the                                                                    
     courts  have  articulately  stated that  prohibiting  a                                                                    
     parent's  right to  release  or waive  on  behalf of  a                                                                    
     minor   child   would   detrimentally   chill   school,                                                                    
     scouting,  athletic,  and  similar type  programs  from                                                                    
     being able  to offer athletic, recreational,  and other                                                                    
     extra-curricular  programs.     There  exists  a  well-                                                                    
     settled  legal history  of recognizing  parental rights                                                                    
     regarding making decisions on  behalf of minor children                                                                    
     regarding  education and  medical  treatment.   To  not                                                                    
     extend  the same  logic to  recreational activities  in                                                                    
     Alaska would be legally illogical and unfair.                                                                              
                                                                                                                                
     The  practical  consequences  of not  recognizing  this                                                                    
     parental  authority  are  profound.     If  an  outdoor                                                                    
     recreation  company is  found  to  have been  operating                                                                    
     without   a  valid   release/waiver  document,   either                                                                    
     insurance  coverage  will not  be  offered  or will  be                                                                    
     voided.    Very  few  programs will  stay  in  business                                                                    
     without  proper  insurance in  place.    As an  outdoor                                                                    
     recreation-oriented and supported  state, Alaska simply                                                                    
     cannot stand  by and  watch this type  of result.   The                                                                    
     Alaska  Supreme  Court has  gone  in  the direction  of                                                                    
     requiring pre recreational  release/waiver documents to                                                                    
     be clearly and unambiguously  drafted and has expressed                                                                    
     concerns over  the specificity of the  language used in                                                                    
     those documents.   Given the  Court's careful  focus on                                                                    
     this  subject,  along  with   the  developing  line  of                                                                    
     authority in  the western states, it  is important that                                                                    
     the legislature  address this  matter before  the court                                                                    
     system is  called upon to  rule on whether it  is legal                                                                    
     for  a  parent or  legal  guardian  to sign  a  release                                                                    
     document on behalf of a minor child.                                                                                       
                                                                                                                                
     In addition, it is important  to note that HB 273 would                                                                    
     not defeat in  any way a parent or  guardian's right to                                                                    
     sue an  operator that is  not providing a  safe service                                                                    
     or  program.     An  ordinary  release/waiver  document                                                                    
     provides only  a release to  causes of  action sounding                                                                    
     in negligence.   Claims of gross  negligence, reckless,                                                                    
     or  intentional  misconduct  are never  released  in  a                                                                    
     release/waiver  document.    It   is  also  crucial  to                                                                    
     remember   that,   with   respect   to   pre-recreation                                                                    
     releases,  these documents  regard activities  that are                                                                    
     totally voluntary  in nature; they are  activities that                                                                    
     regard personal  choice for the participant.   As such,                                                                    
     participants  and parents  of participants  should have                                                                    
     the  freedom to  decide  which  sports or  recreational                                                                    
     activities  they want  to participate  in or  that they                                                                    
     want to  have their children participate  in and should                                                                    
     have   the   freedom   to  contract   regarding   these                                                                    
     activities.   That  fundamental right  to make  choices                                                                    
     regarding  a  child's  activities   is  what  is  being                                                                    
     protected  here; the  bill does  not negate  a parent's                                                                    
     rights, it in fact strengthens them.                                                                                       
                                                                                                                                
Number 1011                                                                                                                     
                                                                                                                                
MS. TONDINI  concluded by requesting  the committee's  support of                                                               
this  legislation.   In response  to Chair  McGuire, Ms.  Tondini                                                               
informed the  committee that Version I  incorporates some changes                                                               
suggested  by the  Office  of Children's  Services  (OCS) in  the                                                               
Department  of Health  and Social  Services (DHSS).   On  page 3,                                                               
lines 1  and 7-8, subparagraph  (B) was changed  and subparagraph                                                               
(E) was  added so that a  representative of the DHSS  will be the                                                               
representative of a child in the state's legal custody.                                                                         
                                                                                                                                
REPRESENTATIVE SAMUELS asked  if a young person under  the age of                                                               
18 needs a parent to be present in order to rent skis.                                                                          
                                                                                                                                
Number 0825                                                                                                                     
                                                                                                                                
TRACEY  L.  KNUTSON,  Attorney  at Law,  Sisson  &  Knutson,  PC,                                                               
answered that  it depends upon the  particular operator's habits,                                                               
policies,  and  procedures.   For  instance,  the Alyeska  Resort                                                               
requires that a child or someone  underage have a parent sign the                                                               
[waiver]  document.   However, she  noted,  a less  well-prepared                                                               
recreational  provider  might  not  require  [the  above].    Ms.                                                               
Knutson  opined that  very  few  recreational providers,  whether                                                               
those offering  rentals or services and  programs, allow children                                                               
to  sign  their  own  release.    Ms.  Knutson  highlighted  that                                                               
children don't  have the legal capacity  under the law to  sign a                                                               
[waiver]  contract  and  policy   documents  are  contractual  in                                                               
nature.                                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG turned attention  to page 3, lines 9-10,                                                               
which refers  to AS  09.65.290, and  pointed out  that subsection                                                               
(e)(2) specifies:   "(2) 'provider' means a person  or a federal,                                                               
state, or municipal  agency that promotes, offers,  or conducts a                                                               
sports or recreational activity,  whether for pay or otherwise;".                                                               
However,  he remarked,  AS 09.65.290(e)(3)(B)(iii)  says that  it                                                               
doesn't include "skiing or sliding  activities at a ski area that                                                               
are subject to the requirements of  AS 05.45".  He inquired as to                                                               
the  types  of  skiing  or   sliding  activities  that  would  be                                                               
excluded.                                                                                                                       
                                                                                                                                
MS. KNUTSON  reminded the committee  that the  legislature passed                                                               
the "Ski Area  Safety Act of 1994"  a number of years ago.   As a                                                               
result  of  that  Act,  ski   areas  don't  use  written  release                                                               
documents;  rather,  an  individual   purchases  a  ticket  which                                                               
specifies the inherent  risks [or the activity].   Therefore, the                                                               
issue of a release doesn't really  apply to a ski area.  However,                                                               
the smaller  groups that operate around  a ski area, such  as the                                                               
Mighty   Mites,  do   use  written   release   documents.     The                                                               
aforementioned is  the reason why  ski areas weren't  included in                                                               
the inherent-risk  legislation that  came before  the legislature                                                               
last year.                                                                                                                      
                                                                                                                                
REPRESENTATIVE GRUENBERG  then turned  attention to page  3, line                                                               
6,  which refers  to AS  14.30.325.   The aforementioned  statute                                                               
allows  the  Department of  Education  and  Early Development  to                                                               
appoint  a surrogate  parent to  represent  disabled children  in                                                               
matters  relating to  "an appropriate  public  education".   This                                                               
doesn't seem to fall within  that type of activity, and therefore                                                               
he questioned whether  a surrogate parent would  be involved with                                                               
this  unless  the [recreational]  activity  is  done through  the                                                               
school.   Representative Gruenberg  said he foresees  a potential                                                               
conflict  between the  child's natural  parent and  the surrogate                                                               
parent and the  person, under a power of attorney,  with whom the                                                               
child may  be living.   He inquired as to  how to resolve  such a                                                               
conflict.                                                                                                                       
                                                                                                                                
MS. KNUTSON  noted that  the aforementioned  was of  concern when                                                               
the legislation  was drafted.   She explained that the  intent is                                                               
to create a reasonably complete list  of those who would have the                                                               
ability to  sign release/waiver  documents.  Although  she agreed                                                               
that there may  be situations in which there is  a natural parent                                                               
and  someone operating  under a  power of  attorney for  the same                                                               
child, it  wouldn't be  up to  the operator  to determine  who is                                                               
capable of signing [the release/waiver documents].                                                                              
                                                                                                                                
CHAIR  McGUIRE  suggested  that   the  language  in  question  be                                                               
removed, noting that the representative  from the OCS agrees that                                                               
it presents a conflict.                                                                                                         
                                                                                                                                
Number 0257                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GRUENBERG  moved   that   the  committee   adopt                                                               
Amendment 1, which would, on page 3, delete lines 5-6.                                                                          
                                                                                                                                
REPRESENTATIVE OGG surmised that  the legislation provides a list                                                               
[of who  is a parent]  and it  seems that these  individuals have                                                               
different jobs  concerning a child.   Therefore, if  [Amendment 1                                                               
is adopted]  and a  child wants to  engage in  school activities,                                                               
there is no one  to sign for that child in the  case in which the                                                               
child has been assigned a surrogate parent.                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG   commented  that  this  is   just  one                                                               
possible factual  situation.   He requested  that Amendment  1 be                                                               
tabled.  There being no objection, it was so ordered.                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG  highlighted that  it needs to  be clear                                                               
that this [legislation] only applies to unemancipated minors.                                                                   
                                                                                                                                
Number 0158                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GRUENBERG  moved   that   the  committee   adopt                                                               
Amendment 2, as follows:                                                                                                        
                                                                                                                                
     Page 2, line 22, after "parent's";                                                                                         
          Insert "unemancipated"                                                                                                
                                                                                                                                
     Page 2, line 26;                                                                                                           
          Delete "a"                                                                                                            
          Insert "an unemancipated"                                                                                             
                                                                                                                                
REPRESENTATIVE OGG  asked if  a parent  has the  right to  act on                                                               
behalf of an emancipated child.                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG  replied no, and stated  that [Amendment                                                               
2] would make it clear.                                                                                                         
                                                                                                                                
Number 0008                                                                                                                     
                                                                                                                                
CHAIR McGUIRE,  upon determining  that there were  no objections,                                                               
announced that Amendment 2 was adopted.                                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG  remarked  that he  could  see  parents                                                               
warring over this.  He noted  that such a conflict wouldn't arise                                                               
before the child engages in football  and breaks his or her neck,                                                               
but would arise afterwards.                                                                                                     
                                                                                                                                
TAPE 04-45, SIDE A                                                                                                            
Number 0001                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG restated his  concern with regard to the                                                               
possibility of a  situation in which there is a  conflict when [a                                                               
child  has  two individuals  classified  as  a parent  under  the                                                               
definitions of  this legislation].   He remarked that  perhaps he                                                               
is making a mountain out of a molehill.                                                                                         
                                                                                                                                
REPRESENTATIVE  SAMUELS said  that  subparagraph (C)  on page  3,                                                               
lines 2-4, seems to  be a bit of a catchall,  which he didn't see                                                               
as necessarily  a bad thing.   He offered his  understanding that                                                               
under  subparagraph (C),  he,  as the  person  responsible for  a                                                               
group of children  going rafting, could sign the  waiver for [all                                                               
the children].                                                                                                                  
                                                                                                                                
MS.  KNUTSON informed  the committee  that  she practices  almost                                                               
exclusively in recreation  law.  What [the language  in the bill]                                                               
attempts to  get at is  anyone who  is legally responsible  for a                                                               
child.   Although Ms. Knutson  agreed that [subparagraph  (C)] is                                                               
sort of a catchall, she clarified  that it isn't meant to include                                                               
a situation  in which  a neighbor  signs a  waiver for  the child                                                               
next door.  The neighbor wouldn't  have the legal right to do the                                                               
aforementioned   because   he   or  she   wouldn't   have   legal                                                               
responsibility  for that  child.   In such  a case,  the operator                                                               
would  need  [the waiver/release  document  to  be signed]  by  a                                                               
person who has a legal responsibility for the child.                                                                            
                                                                                                                                
REPRESENTATIVE  GRUENBERG suggested,  then,  that [those  points]                                                               
should be  clearly stated  in the bill,  otherwise there  will be                                                               
some legal problems.                                                                                                            
                                                                                                                                
MS. KNUTSON  suggested that perhaps the  language in subparagraph                                                               
(C) should read:  "a person who  has the legal capacity to act in                                                               
the place of the child or adoptive parent".                                                                                     
                                                                                                                                
Number 0341                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE announced  that Conceptual  Amendment 3  would [on                                                               
page 3, line 2, insert the  following language] "a person who has                                                               
the legal capacity to act in the child's welfare".                                                                              
                                                                                                                                
REPRESENTATIVE  GRUENBERG remarked  that he  wasn't sure  whether                                                               
the term "capacity"  is appropriate because it  usually refers to                                                               
whether the individual is incapacitated or is an infant.                                                                        
                                                                                                                                
MS. TONDINI  asked whether it  would be sufficient to  insert the                                                               
following language:   "a  person who  is legally  responsible for                                                               
the  child's welfare".   She  suggested making  the language  "or                                                               
another person  who is legally  responsible for the child"  a new                                                               
subparagraph.                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG suggested  having [Ms.  Knutson] return                                                               
with specific language.                                                                                                         
                                                                                                                                
MS. TONDINI  stated that  the amendment  could be  conceptual and                                                               
she could talk with the drafters.                                                                                               
                                                                                                                                
CHAIR McGUIRE clarified that the intent  is to make it clear that                                                               
not just  anyone can  sign a waiver  on behalf of  a child.   She                                                               
specified that the  intent is for the waiver to  be signed by the                                                               
child's  natural  or  adoptive   parent  or  the  grandparent  or                                                               
stepparent with whom the child lives.                                                                                           
                                                                                                                                
CHAIR  McGUIRE  clarified  that  she  had  moved  the  Conceptual                                                               
Amendment 3,  and related  her understanding  that Representative                                                               
Gruenberg had objected.                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG withdrew his objection.                                                                                
                                                                                                                                
Number 0502                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  announced  that   [Conceptual]  Amendment  3  was                                                               
adopted.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG returned  to  the issue  of whether  to                                                               
adopt Amendment 1.                                                                                                              
                                                                                                                                
REPRESENTATIVE OGG objected.                                                                                                    
                                                                                                                                
CHAIR  McGUIRE explained  that Representative  Ogg was  concerned                                                               
that without  subparagraph (D) on page  3, the child with  only a                                                               
surrogate  parent  may not  be  able  to participate  in  certain                                                               
activities.                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  inquired  as to  whether  the  concern                                                               
could  be  resolved by  not  eliminating  [subparagraph (D)]  and                                                               
adding language specifying, "if the  activity is within the scope                                                               
of the surrogate parenting".                                                                                                    
                                                                                                                                
Number 0633                                                                                                                     
                                                                                                                                
MYRA  CASEY,  Field  Administrator,  Central  Office,  Office  of                                                               
Children's  Services  (OCS),  Department  of  Health  and  Social                                                               
Services  (DHSS), offered  her understanding  that the  surrogate                                                               
parent  just represents  a child's  educational  interests.   She                                                               
informed the  committee that when  a child  is in the  custody of                                                               
[OCS], OCS  "sign" and  allow the school  to appoint  a surrogate                                                               
parent.   Therefore,  it  seems that  for  this legislation,  the                                                               
child would  either have a parent,  a legal guardian, or  a child                                                               
in  OCS's  custody would  allow  OCS  to sign  [a  release/waiver                                                               
document].                                                                                                                      
                                                                                                                                
REPRESENTATIVE OGG withdrew his objection.                                                                                      
                                                                                                                                
Number 0692                                                                                                                     
                                                                                                                                
CHAIR   McGUIRE,  upon   determining   there   were  no   further                                                               
objections, announced that Amendment 1 was adopted.                                                                             
                                                                                                                                
Number 0700                                                                                                                     
                                                                                                                                
CHAIR McGUIRE moved that the  committee adopt [a verbally amended                                                               
Conceptual] Amendment  4, which  then read  [original punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     Page 2, Lines 17-18, following "allege":                                                                                   
                                                                                                                                
    Delete   "willful,   wanton,   reckless,   or   grossly                                                                     
     negligent acts or omissions"                                                                                               
                                                                                                                                
     Insert "reckless or intentional misconduct"                                                                                
                                                                                                                                
                                                                                                                                
     Page 2, Lines 27-28, following "for":                                                                                      
                                                                                                                                
    Delete   "willful,   wanton,   reckless,   or   grossly                                                                     
     negligent acts or omissions"                                                                                               
                                                                                                                                
     Insert "reckless or intentional misconduct"                                                                                
                                                                                                                                
REPRESENTATIVE OGG expressed the need  for the language to fit in                                                               
grammatically.                                                                                                                  
                                                                                                                                
CHAIR McGUIRE agreed and specified  that Amendment 4, as amended,                                                               
would be a conceptual amendment.                                                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked whether  a  parent  can waive  a                                                               
claim for gross negligence, adding  that such would be troubling.                                                               
He  relayed that  he  would be  more  comfortable with  including                                                               
gross negligence.                                                                                                               
                                                                                                                                
CHAIR McGUIRE  reminded members that  she had  [verbally] amended                                                               
Conceptual Amendment  4 so as  to not include  "gross negligence"                                                               
because of  the comments she has  heard today.  She  reminded the                                                               
committee that  after 1997, when  the state changed  the punitive                                                               
damages statute,  all the jury  instructions pertaining  to gross                                                               
negligence  became  inapplicable.     Furthermore,  it  could  be                                                               
confusing  to create  multiple jury  instructions.   The type  of                                                               
conduct  being  targeted is  a  known  risk that  someone  should                                                               
observe   and  that   is   being   willfully  and   intentionally                                                               
disregarded.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG surmised,  then, that  gross negligence                                                               
is now part of recklessness.                                                                                                    
                                                                                                                                
CHAIR  McGUIRE  responded, "I  think  it  is."   She  noted  that                                                               
Black's  Law  Dictionary  defines gross  negligence  as  follows:                                                             
"the intentional failure  to perform a manifest  duty in reckless                                                               
disregard of  the consequences."   Under Alaska law,  reckless is                                                               
the  standard by  which someone  consciously  disregards a  known                                                               
risk.   Therefore,  she opined,  [gross negligence  and reckless]                                                               
are basically the same.                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG  surmised, then, that  under [Conceptual                                                               
Amendment 4] the term "reckless  misconduct" includes the concept                                                               
of gross negligence.                                                                                                            
                                                                                                                                
CHAIR McGUIRE replied,  "To the extent that  someone would allege                                                               
that, yes."                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he was  satisfied with  that, and                                                               
withdrew his objection.                                                                                                         
                                                                                                                                
Number 0974                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE,  upon  determining  that there  were  no  further                                                               
objections, announced  that Conceptual  Amendment 4,  as amended,                                                               
was adopted.                                                                                                                    
                                                                                                                                
CHAIR McGUIRE requested  a motion to report  the legislation from                                                               
committee.    She announced  that  the  committee would  have  an                                                               
opportunity to  review the committee  substitute, and  would work                                                               
on any serious concerns.                                                                                                        
                                                                                                                                
REPRESENTATIVE OGG remarked  that as a whole,  the legislation is                                                               
a  "good idea  and a  good direction  to move  in."   He posed  a                                                               
situation in  which a  child doesn't have  an action  against the                                                               
provider of the sports, although  the child is seriously injured.                                                               
When  the  child   reaches  the  age  of   majority,  [would  the                                                               
aforementioned]  impact the  child's  ability to  have an  action                                                               
against his or her parent for negligence, et cetera, he asked.                                                                  
                                                                                                                                
MS.  KNUTSON noted  that  she  has participated  in  some of  the                                                               
debate  in Colorado  on  this issue.   She  relayed  that in  her                                                               
research  she has  only  seen a  handful of  cases  in which  the                                                               
children have filed a case of  negligence against the parent.  In                                                               
those  cases, there  was criminal  conduct against  the children,                                                               
and  so   when  the  children  were   appointed  guardians,  [the                                                               
guardians] looked  for insurance policies that  might support the                                                               
children.    If a  child  was  hurt  while doing  a  recreational                                                               
activity and then  upon achieving the age of  majority decided to                                                               
[bring a  case] against  the parent, she  said that  the question                                                               
regarding whether  it would  be supportable  would be  a question                                                               
for  the court  system.   In regard  to whether  this legislation                                                               
would prevent a child from  [bringing an action] against a parent                                                               
for  signing the  release, she  said it  wouldn't.   However, she                                                               
said she could not predict whether  a court could support such an                                                               
action.                                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG informed the  committee that in order to                                                               
become emancipated under Title 9, the  child must show that he or                                                               
she can support  himself or herself.  He said  he could foresee a                                                               
circumstance  in which  an [unemancipated]  17-year-old wants  to                                                               
pursue  a  sport,  but  the  parent [doesn't  want  to  sign  the                                                               
waiver/release document].   He said he wasn't aware  of any legal                                                               
mechanism  that allows  such an  issue to  be brought  before the                                                               
court.   He  asked  Ms.  Knutson whether  a  provision should  be                                                               
included in  order to allow  [someone to] execute the  release on                                                               
behalf of the child.                                                                                                            
                                                                                                                                
MS.  KNUTSON  answered  that  the law  specifies  that  until  an                                                               
individual achieves  the age of majority,  the individual doesn't                                                               
have the capacity  to contract.  Furthermore, case  law in Alaska                                                               
specifies that these waiver/release  documents are contractual in                                                               
nature.                                                                                                                         
                                                                                                                                
CHAIR  McGUIRE,  upon determining  that  no  one else  wished  to                                                               
testify, closed public testimony on HB 273.                                                                                     
                                                                                                                                
Number 1320                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGG moved to report  the proposed CS for SSHB 273,                                                               
Version  23-LS0966\I,  Bullock,  3/19/04,   as  amended,  out  of                                                               
committee  with individual  recommendations and  the accompanying                                                               
zero fiscal note.  There  being no objection, CSSSHB 273(JUD) was                                                               
reported from the House Judiciary Standing Committee.                                                                           
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
Number 1334                                                                                                                     
                                                                                                                                
There being no  further business before the  committee, the House                                                               
Judiciary Standing Committee meeting was adjourned at 3:15 p.m.                                                                 

Document Name Date/Time Subjects