Legislature(1993 - 1994)
03/26/1993 01:00 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 26, 1993
1:00 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Jeannette James, Vice-Chair
Representative Pete Kott
Representative Gail Phillips
Representative Cliff Davidson
Representative Jim Nordlund
MEMBERS ABSENT
Representative Joe Green
COMMITTEE CALENDAR
HB 160 "An Act relating to the time for filing certain
civil actions; and providing for an effective
date."
PASSED OUT OF COMMITTEE WITH A DO PASS
RECOMMENDATION
SB 54 "An Act relating to violations of laws by
juveniles, to the remedies for offenses and
activities committed by juveniles and to records
of those offenses, and to incarceration of
juveniles who have been charged, prosecuted, or
convicted as adults; and providing for an
effective date."
HEARD AND HELD IN COMMITTEE
HB 192 "An Act relating to advertising by construction
contractors."
CANCELLED - NOT YET REFERRED TO COMMITTEE
WITNESS REGISTER
REPRESENTATIVE GAIL PHILLIPS
Alaska State Legislature
State Capitol, Room 216
Juneau, Alaska 99801-1182
Phone: 465-2689
Position Statement: Read sponsor statement for HB 160
RUSS WINNER, Attorney
Alaska Trial Lawyers Association
Alaska Action Trust
900 West Fifth Avenue, Suite 700
Anchorage, Alaska 99501
Phone: 277-9522
Position Statement: Opposed HB 160
RICHARD RITTER
American Institute of Architects, Alaska Chapter
Alaska Professional Design Council
800 Glacier Avenue, Suite A
Juneau, Alaska 99801
Phone: 586-1371
Position Statement: Supported HB 160
SENATOR RICK HALFORD
Alaska State Legislature
State Capitol, Room 111
Juneau, Alaska 99801-1182
Phone: 465-4958
Position Statement: Prime sponsor of SB 54
DEAN GUANELI
Assistant Attorney General
and Criminal Division Administrator
Department of Law
P. O. Box 110300
Juneau, Alaska 99811-0300
Phone: 465-3428
Position Statement: Discussed SB 54
CHARLIE COLE
Attorney General
Department of Law
P. O. Box 110300
Juneau, Alaska 99811-0300
Phone: 465-3600
Position Statement: Discussed SB 54
LIZ DODD
American Civil Liberties Union, Alaska Chapter
100 Parks Street
Juneau, Alaska 99801
Phone: 463-2601
Position Statement: Opposed SB 54
PREVIOUS ACTION
BILL: HB 160
SHORT TITLE: LIABILITY OF DESIGN/CONSTRUCTION PROS
BILL VERSION: HB 160 AM S
SPONSOR(S): REPRESENTATIVE(S) GREEN,Phillips,Larson,
Hudson,Porter,Bunde,Vezey,Mulder,Kott,James
TITLE: "An Act relating to the time for filing certain civil
actions based on defect in an improvement to real property;
and providing for an effective date."
JRN-DATE JRN-PG ACTION
05/01/03 (S) JUD AT 12:00 PM BELTZ ROOM 211
02/17/93 362 (H) READ THE FIRST TIME/REFERRAL(S)
02/17/93 362 (H) LABOR & COMMERCE, JUDICIARY
02/17/93 373 (H) COSPONSOR(S): VEZEY, MULDER
02/19/93 396 (H) COSPONSOR CORRECTIONS:
PHILLIPS, LARSON
02/19/93 397 (H) HUDSON, PORTER, BUNDE
02/19/93 397 (H) COSPONSOR(S): KOTT
03/02/93 (H) L&C AT 03:00 PM CAPITOL 17
03/02/93 (H) MINUTE(L&C)
03/03/93 517 (H) L&C RPT 5DP
03/03/93 518 (H) DP: PORTER, HUDSON,SITTON,
WILLIAMS,GREEN
03/03/93 518 (H) -2 ZERO FISCAL NOTES (COURT,
LAW) 3/3/93
03/03/93 526 (H) COSPONSOR(S): JAMES
03/26/93 (H) JUD AT 01:30 PM CAPITOL 120
BILL: SB 54
SHORT TITLE: OFFENSES BY JUVENILE OFFENDERS
BILL VERSION: CSSB 54(FIN)
SPONSOR(S): SENATOR(S) HALFORD,Phillips,Leman,Taylor,
Miller; REPRESENTATIVE(S) Porter,Bunde
TITLE: "An Act relating to violations of laws by juveniles,
to the remedies for offenses and activities committed by
juveniles and to records of those offenses, and to
incarceration of juveniles who have been charged,
prosecuted, or convicted as adults; and providing for an
effective date."
JRN-DATE JRN-PG ACTION
01/22/93 122 (S) READ THE FIRST TIME/REFERRAL(S)
01/22/93 122 (S) JUDICIARY, FINANCE
02/08/93 (S) JUD AT 01:30 PM BELTZ ROOM 211
02/08/93 (S) MINUTE(JUD)
02/17/93 (S) JUD AT 01:30 PM BELTZ ROOM 211
02/17/93 (S) MINUTE(JUD)
02/19/93 408 (S) JUD RPT CS 3DP 1DNP NEW
TITLE
02/19/93 408 (S) ZERO FISCAL NOTES TO SB (LAW,
DPS, CORR)
02/19/93 408 (S) FISCAL NOTE TO SB (ADM - 2)
02/24/93 461 (S) FISCAL NOTES TO CS (COURT,
CORR)
02/24/93 461 (S) ZERO FISCAL NOTES TO CS (DHSS,
LAW)
02/22/93 (H) MINUTE(JUD)
02/24/93 (S) FIN AT 09:00 AM SENATE FINANCE
518
02/25/93 (S) FIN AT 09:00 AM SENATE FINANCE
518
02/26/93 499 (S) FIN RPT CS 6DP 1NR NEW
TITLE
02/26/93 500 (S) FN TO FIN CS (ADM-2, COURT)
02/26/93 500 (S) PREVIOUS CS ZERO FNS APPLY
(LAW, DHSS)
02/26/93 500 (S) PREVIOUS SB ZERO FN APPLIES
(DPS)
02/26/93 (S) FIN AT 09:00 AM SENATE FINANCE
518
02/26/93 (S) MINUTE(FIN)
02/26/93 (S) RLS AT 01:15 PM FAHRENKAMP ROOM
203
02/26/93 (S) MINUTE(RLS)
03/01/93 538 (S) PREVIOUS FN APPLIES TO CS
(CORR)
03/01/93 540 (S) RULES TO CALENDAR 3/1/93
03/01/93 541 (S) READ THE SECOND TIME
03/01/93 542 (S) FIN CS ADOPTED Y11 N8 E1
03/01/93 543 (S) THIRD READING 3/2 CALENDAR
03/02/93 561 (S) READ THE THIRD TIME CSSB 54
(FIN)
03/02/93 562 (S) RETURN TO 2ND FOR AM 1 FLD Y9
N10 E1
03/02/93 567 (S) RETURN TO 2ND FOR AM 2 FLD Y9
N10 E1
03/02/93 568 (S) RETURN TO 2ND FOR AM 3 FLD Y9
N10 E1
03/02/93 568 (S) RETURN TO 2ND FOR AM 4 FLD Y9
N10 E1
03/02/93 569 (S) RETURN TO 2ND FOR AM 5 FLD Y9
N10 E1
03/02/93 570 (S) RETURN TO 2ND FOR AM 6 FLD Y9
N10 E1
03/02/93 571 (S) (S) ADOPTED LETTER OF INTENT
03/02/93 571 (S) PASSED Y12 N7 E1
03/02/93 571 (S) EFFECTIVE DATE PASSED Y14 N5 E1
03/02/93 572 (S) Kerttula NOTICE OF
RECONSIDERATION
03/03/93 595 (S) RECONSIDERATION NOT TAKEN UP
03/03/93 596 (S) TRANSMITTED TO (H)
03/05/93 538 (H) READ THE FIRST TIME/REFERRAL(S)
03/05/93 538 (H) JUDICIARY, FINANCE
03/12/93 629 (H) CROSS SPONSOR(S): PORTER
03/16/93 (H) MINUTE(HES)
03/24/93 765 (H) CROSS SPONSOR(S): BUNDE
03/26/93 (H) JUD AT 01:30 PM CAPITOL 120
BILL: HB 192
SHORT TITLE: ADVERTISING BY UNREGISTERED CONTRACTORS
BILL VERSION: SSHB 192
SPONSOR(S): REPRESENTATIVE(S) MULDER
TITLE: "An Act relating to construction contractors."
JRN-DATE JRN-PG ACTION
03/02/93 505 (H) READ THE FIRST TIME/REFERRAL(S)
03/02/93 505 (H) STATE AFFAIRS, JUDICIARY,
FINANCE
03/20/93 (H) STA AT 08:00 AM CAPITOL 102
03/24/93 760 (H) SPONSOR SUBSTITUTE INTRODUCED
-REFERRALS
03/24/93 760 (H) STATE AFFAIRS, JUDICIARY,
FINANCE
03/26/93 (H) JUD AT 01:30 PM CAPITOL 120
ACTION NARRATIVE
TAPE 93-42, SIDE A
Number 000
The House Judiciary Standing Committee meeting was called to
order at 1:55 p.m., on March 26, 1993. A quorum was
present. Chairman Porter announced that HB 160 was the
first item of business before the committee.
HB 160: LIABILITY OF DESIGN/CONSTRUCTION PROS
Number 026
REPRESENTATIVE GAIL PHILLIPS read a sponsor statement on
behalf of Rep. Green, who was absent. She said that HB 160
would amend the time period within which a person could
bring legal action against design and construction
professionals. She mentioned that the time period was
called the "statute of repose," which she said was similar
to the statute of limitations and had been adopted in 45
other states.
REPRESENTATIVE PHILLIPS commented that the fifth Alaska
Legislature had enacted a statute of repose with a six-year
limitation. However, she stated that in 1988, the Alaska
Supreme Court found that the statute was unconstitutional.
She said that HB 160 addressed the court's concerns by
expanding the list of those involved in the design and
construction process. She said that the sponsor, Rep.
Green, believed that without a time limit for filing legal
actions, design professionals and others in the construction
trade were subject to an indefinite and unfair period of
liability.
REPRESENTATIVE PHILLIPS noted that after substantial
completion of a project, the integrity of a structure could
be adversely affected by poor maintenance, improper
operation or alteration -- factors for which a designer or
builder should not be held responsible. She commented that
HB 160 provided for a ten-year statute of repose. She added
that the bill did not grant designers and builders immunity,
at any time, from injury or damage as the result of gross
negligence. She cited a 1988 national study which found
that 96.8% of all claims addressed by the bill were filed
within ten years of a project's completion.
REPRESENTATIVE PHILLIPS stated that under HB 160's
provisions, within ten years after a project's completion,
even the most frivolous claim could still be filed. After
ten years, however, plaintiffs would have to establish gross
negligence in order to have a case, she said. She indicated
the sponsor's opinion that suits filed more than ten years
after a project's completion cost architects, engineers, and
contractors unreasonable time, energy, productivity, and
financial resources.
Number 086
CHAIRMAN BRIAN PORTER mentioned that HB 160 had been heard
by the House Labor and Commerce Committee, where it received
five "do pass" votes.
Number 097
RUSS WINNER, an ANCHORAGE ATTORNEY, testified on behalf of
the ALASKA TRIAL LAWYERS ASSOCIATION. He cited his
background as a law professor, and said that he was now in
private practice. He called the members' attention to a
position paper which he had written on behalf of the Alaska
Action Trust. (A copy of Mr. Winner's position paper may be
found in the House Judiciary Committee Room, Capitol Room
120, and after the adjournment of the second session of the
18th Alaska State Legislature, in the Legislative Reference
Library.)
MR. WINNER said that HB 160 suffered from the same
infirmities as the law which had been struck down by the
Alaska Supreme Court. He predicted that, if enacted, HB 160
would be deemed unconstitutional as well. He called the
bill bad public policy which did not serve its intended
purposes. He stated that in 1967, the Alaska Legislature
had enacted a six-year statute of repose for design
professionals. He noted that the law had provided no
protection for owners or "material men," or suppliers of
construction products. That law, he said, was repeatedly
attacked in court.
MR. WINNER noted that trial courts uniformly found the
statute to violate equal protection provisions in the
Constitution. He commented that none of these cases ever
reached the Supreme Court. He stated that in 1988, the
Alaska Supreme Court decided a case known as Turner v.
Scales, and found the statute of repose to be
unconstitutional. He said that the court found that the
rights of injured plaintiffs to bring lawsuits should not be
lightly discarded by the legislature. He noted that the
court ruled that the purpose of the 1967 statute of repose
was to encourage construction in Alaska.
MR. WINNER said that the court found the law did not serve
its purpose well. He stated that one reason the court found
the law did not serve its intended purpose was that it did
not cover owners, lessees, contractors, or material men.
Instead, he noted, it only protected design professionals.
The court found the law to be special interest legislation.
He said that the court was also troubled by the fact that
the law would have the effect of transferring liability from
the design professionals to those who were not protected
under the statute of repose, resulting in disincentives to
construction.
MR. WINNER noted that tort laws had changed since 1988, and
said that proponents of HB 160 felt that those changes would
cause the Supreme Court to have a different interpretation
of the statute of repose now. He expressed his disagreement
with the proponents of HB 160 on that point. He mentioned
that in 1986, the legislature had enacted tort reform. One
year later, he added, voters enacted pure several liability,
in which a plaintiff could only recover a defendant's
percentage of fault.
MR. WINNER stated that the proponents of HB 160 were asking
the legislature to reenact essentially the same statute
which was earlier struck down by the Supreme Court. He
mentioned that HB 160 contained some changes from the
earlier law. The statute of repose was increased from six
years to ten years, he noted, and contractors were added to
the group of protected individuals. Owners, lessees, and
material men continued to be excluded from the protected
class, he said.
MR. WINNER commented that he found the bill's statement of
purpose confusing and weak. He expressed his opinion that
HB 160's purpose was to encourage construction activities in
the state, by reducing lawsuits and insurance premiums. He
cited a letter to Senator Kelly from the Alaska Professional
Design Council which mentioned that particular purpose. He
believed HB 160 had substantial problems, given that intent.
MR. WINNER mentioned the voter initiative of 1987, regarding
tort reform, which became effective in 1989. He said that
the courts had construed that initiative to mean that a
plaintiff could choose to not sue all of the responsible
parties. Further, the courts had held that a defendant
could bring in a third-party defendant. At that point, he
said, fault would be allocated among all the parties
involved in the litigation. If an original defendant did
not bring in a third-party defendant, he added, that third-
party defendant's fault could not be allocated in court.
MR. WINNER stated that if the courts did not allow for
defendants to bring in third-party defendants, then
plaintiffs could choose whichever person had a "deep
pocket." The purpose of tort reform, to eliminate "deep
pockets" and adopt several liability, dictated that result,
he noted.
MR. WINNER cited an example of what might happen if HB 160
was to pass. He discussed the roof of a building collapsing
eleven years after a building was completed, resulting in
people being injured or killed. A plaintiff could only sue
the building's owner, lessee, or material men, not the
architects or engineers. He said that the unprotected
professionals would not be able to bring in the design
professionals as third-party defendants, because of the
provisions of HB 160. Therefore, he said, HB 160 would
force the unprotected individuals to bear all of the
liability.
MR. WINNER expressed his opinion that the problem the court
found in Turner v. Scales still existed. He predicted that
if enacted, HB 160 would be struck down again by the Supreme
Court. He called the bill a disincentive to construction.
He stated that under current law, owners, lessees, and
material men could share liability with design
professionals, if those design professionals were partly at
fault. House Bill 160 would prevent that, however.
Number 520
MR. WINNER reiterated his assumption that HB 160 was
intended to encourage construction. He expressed his
opinion that, for the same reasons that the Supreme Court
would find the bill unconstitutional, the committee should
conclude that the bill would not encourage construction.
House Bill 160 would be a help to design professionals only,
he said. He asked if it was sound public policy to deprive
innocent victims of their day in court, in order to allow
architects and engineers to sleep better at night. He
called the bill "special interest legislation."
MR. WINNER mentioned that one of the rationales for HB 160
was to avoid "frivolous" lawsuits filed more than ten years
after a building was completed. He commented that Justice
Moore of the Supreme Court had recently appointed a
committee of judges and lawyers charged with overhauling the
Alaska civil court system, based on an Arizona model. He
said that such changes would force frivolous cases out of
the court system at a very early stage of the process. He
noted that if the purpose of HB 160 was to eliminate
frivolous lawsuits against design professionals, the House
Judiciary Committee should closely examine the work of
Justice Moore's committee.
Number 571
REPRESENTATIVE CLIFF DAVIDSON asked how many other states
could have statutes of repose on the books, while Alaska's
statute of repose was struck down as unconstitutional.
Number 582
MR. WINNER had not examined statutes of repose in other
states. However, he guessed that the other states' statutes
of repose were not terribly different from that which was
being proposed in HB 160. The difference, he said, lay in
the make-up of the Supreme Court in Alaska. He said that
Alaska's Supreme Court was very protective of the rights of
plaintiffs.
Number 595
REPRESENTATIVE DAVIDSON asked Mr. Winner to comment on
claims that HB 160 would provide equal access to the courts,
and would limit insurance rates.
MR. WINNER had a hard time understanding how HB 160 would
aid in providing access to the courts, as in his opinion,
the point of the bill was to bar access to the courts.
REPRESENTATIVE DAVIDSON noted that proponents claimed that
HB 160 would provide equal access to the courts.
MR. WINNER believed that proponents had made that claim as a
way of expressing their hope that the Supreme Court would
not find the law unconstitutional with regard to equal
protection provisions. He believed that the court would
find HB 160 unconstitutional. He mentioned that the
Legislative Affairs Agency's Division of Legal Services
agreed with his assessment.
Number 618
REPRESENTATIVE DAVIDSON asked Mr. Winner to address the
claim of limited insurance rates.
Number 620
MR. WINNER said that he had read a letter in the bill
packets from an insurance agency which stated, in essence,
that insurance rates would likely not drop immediately if
HB 160 was enacted. Yet, he said, paraphrasing the letter,
as time progressed, design professionals' insurance rates
might increase if the bill did not pass, due to exposure to
lawsuits. In response, he commented that Alaska was too
small of a market for insurance companies to have special
rates for Alaska.
MR. WINNER asserted that Alaska's experience would not have
an impact on insurance rates. What would impact rates, in
his opinion, was the lost experiences of an entire region of
states, including Alaska. Also, he said, insurance rates
were determined largely as a result of the investment
performance of insurance companies.
MR. WINNER discussed the question of whether insurance rates
would go up if HB 160 was not enacted. He stated that not
many suits would be filed by people injured as a result of a
building collapsing more than ten years after the building
was completed. He expressed doubts about insurance rates
increasing in the event that HB 160 was not enacted.
Number 676
REPRESENTATIVE JIM NORDLUND expressed his concerns regarding
HB 160. He said that if the intent of the bill was to
discourage frivolous lawsuits, then he supported it.
However, he noted his concerns for victims who were injured
or killed due to poor building design. He called the
members' attention to page 3 of the bill, which set out
exemptions to the bill's provisions. On page 3, line 17, he
said, the bill mentioned situations in which damage was
caused intentionally, fraudulently, etc. He asked Mr.
Winner to discuss the difference between "gross negligence"
and "simple negligence."
REPRESENTATIVE NORDLUND expressed his desire that victims be
allowed to file suit if a design professional acted
negligently.
Number 701
MR. WINNER said that in his experience as a plaintiff's
attorney, gross negligence was a very high standard to
prove. He noted the current version of HB 160 said that if
a design professional was grossly negligent, then he or she
could be sued after the ten year period. He commented that
there was a big difference between gross negligence and
simple negligence.
Number 719
REPRESENTATIVE NORDLUND asked if the definitions varied on a
case-by-case basis, as determined by individual judges.
Number 722
MR. WINNER responded that the definition was a pretty firm
standard, although it was generally up to a jury to decide
whether a person had been grossly negligent.
Number 729
REPRESENTATIVE PHILLIPS asked Mr. Winner if Alaska attorneys
had a statute of repose.
Number 732
MR. WINNER replied that no statute of repose applied to
suits against lawyers.
Number 734
CHAIRMAN PORTER asked Mr. Winner if, during the
approximately 20 years that the old statute of repose was in
place, there were any instances of buildings collapsing
after the period of repose had ended.
Number 743
MR. WINNER was not aware of any such cases. He reiterated
his belief that it would be an unusual case which would fall
within the purview of HB 160. He thought it was true that
most design defect cases would be brought within ten years
of a building's completion.
Number 749
REPRESENTATIVE JEANNETTE JAMES understood and agreed with
much of Mr. Winner's testimony. She said that the public
felt frustrated with regard to tort reform and the need for
equal protection. She asked if there could be an incidence
of design professionals being sued for a building collapse,
although they were not at fault. If in that case the
plaintiff's attorney was very astute and the defendant's
attorney was not, she asked if it was possible that the
design professional would lose the case, although he or she
was not at fault.
Number 767
MR. WINNER said that the situation which Representative
James had described could occur, although it would be
uncommon. However, he noted that a judge and jury would
also be involved in that case. He expressed his opinion
that juries were, as a rule, very skeptical of plaintiffs'
claims.
REPRESENTATIVE JAMES stated that Mr. Winner had made her
point by mentioning the involvement of the judge and jury,
and by mentioning the attitude of juries.
Number 786
REPRESENTATIVE DAVIDSON asked Mr. Winner why he felt HB 160
needed a fiscal note, in light of his statement that very
few cases would be affected by HB 160.
Number 793
MR. WINNER replied that, in looking through the materials
submitted to the committee on HB 160, he had seen no fiscal
notes. He stated that both the Department of Law (DOL) and
the court system had indicated that the bill would have no
fiscal impact. He expressed his opinion that the bill would
result in increased costs to the state.
MR. WINNER commented that the agencies had made the point
that they contracted with design professionals, when a
building was being constructed for the state. Those
contracts, the agencies held, entitled the state to sue
those design professionals. Those contractual rights, they
said, overrode what was in statute. In response, he said
that those arguments did not apply to a situation in which a
school collapsed, in its eleventh year, due to a design
flaw, killing school children. In that situation, he asked,
who would pay? If the design professionals could not be
sued, he said, the taxpayers would have to pay.
TAPE 93-42, SIDE B
Number 000
RICHARD RITTER, representing the ALASKA CHAPTER OF THE
AMERICAN INSTITUTE OF ARCHITECTS and the ALASKA PROFESSIONAL
DESIGN COUNCIL, testified that he was one of the prime
sponsors of the joint and several liability initiative in
1987. He said that that law ensured a person was only
responsible for his or her share of the fault. He expressed
surprise at the court's subsequent interpretation of the
law's language.
MR. RITTER noted that 32 states had found statutes of repose
for design professionals to be constitutional. He added
that 96.8% of claims against design professionals were
brought within ten years of a building's completion,
according to studies. Most claims filed after ten years
were easily defended by architects, he said. He said that
HB 160 was an attempt to balance the rights of plaintiffs to
bring claims against the rights of others to keep their
business affairs in order.
MR. RITTER commented that if a roof collapsed ten years
after a building was completed, it could be for any number
of reasons -- maintenance, excessive loads, or a structural
engineering error. He said that if he had a structural
engineer working for him, and that engineer made an error
which resulted in the collapse of a roof, he would call that
gross negligence.
Number 075
MR. RITTER expressed concern that design professionals had
to pay for defense costs, even if they were innocent, out of
their own pockets. Additionally, he said, design
professionals' insurance only kicked in after huge
deductibles were paid. He mentioned that bills similar to
HB 160 had been introduced many times in the past, and had
never had fiscal notes attached.
Number 085
REPRESENTATIVE DAVIDSON asked Mr. Ritter how he, as an
architect, protected himself against poor or inadequate
building maintenance.
Number 095
MR. RITTER replied that to a certain extent, architects
could design buildings in such a manner as to minimize
maintenance. However, he said that such design features
hinged on budget considerations.
Number 114
REPRESENTATIVE DAVIDSON asked Mr. Ritter to clarify his
remarks.
Number 123
MR. RITTER gave an example in which an architect recommended
that a client use a roofing system with an expected 20-year
life, and the client said that he or she could not afford
such a roof. In that case, he said, the architect could
recommend a cheaper roof, with an expected life of ten
years, which would still meet the building code.
Number 131
REPRESENTATIVE DAVIDSON asked Mr. Ritter if, as a design
professional who was found innocent of any fault, his
attorneys' fees would be paid by the plaintiff.
Number 138
MR. RITTER did not know the answer to Representative
Davidson's question, as no claims had ever been brought
against his practice.
Number 143
REPRESENTATIVE DAVIDSON asked Mr. Ritter why, if he had
never had a claim brought against him, he felt that HB 160
was needed.
Number 145
MR. RITTER stated that when he retired, he did not want to
be followed around for the rest of his life by claims that
buildings he had designed 30 years earlier had had design
flaws.
Number 149
REPRESENTATIVE NORDLUND offered an example in which a
building had not been constructed according to the building
code, and its roof collapsed eleven years after it was
completed. "Would that be considered an act of gross
negligence on the part of the contractor?" he asked.
Number 159
MR. RITTER responded that he was not qualified to provide
Representative Nordlund with a legal definition of "gross
negligence." He said that in his practice, he subcontracted
with a structural engineer to design roofs. If a structural
engineer erred in designing a roof, he said, it would, in
his opinion, be classified as gross negligence.
Number 184
REPRESENTATIVE PHILLIPS OFFERED AMENDMENT NO. 1, reducing
the term of the statute of repose from ten years to eight
years. She said that the sponsor concurred with her
amendment. She mentioned that 96.8% of claims were brought
within ten years of a building's completion and 95.5% of
claims were brought within eight years of a building's
completion.
Number 207
REPRESENTATIVE DAVIDSON OBJECTED.
Number 209
REPRESENTATIVE NORDLUND also OBJECTED. He noted that design
professionals were involved in a unique occupation. He said
that the legislature was trying to decide at what point
designers should be relieved of the liability of their
designs. He expressed his opinion that ten years was
adequate, and said that reducing the term to eight years
increased the exposure for victims and decreased their
ability to collect damages. He urged the committee to vote
against the amendment.
Number 236
REPRESENTATIVE PHILLIPS commented that her amendment
represented only a minuscule change in the number of claims
which would be affected by HB 160. She said that her
amendment would have a substantial impact on the economy and
on the construction industry.
Number 245
REPRESENTATIVE DAVIDSON said that, for him, the issue came
down to choosing between protecting the public and
pretending that it did not matter. He stated that while the
state wanted to encourage construction and ensure that
Alaska was not a bad place in which to do business, he did
not support the amendment.
Number 262
REPRESENTATIVE JAMES commented that with a ten-year statute
of repose, the committee could "sell" the bill, whereas with
an eight-year term, the bill would not "sell."
Number 270
REPRESENTATIVE PHILLIPS WITHDREW the AMENDMENT.
Number 272
REPRESENTATIVE NORDLUND OFFERED AMENDMENT NO. 2. He
mentioned an argument which had been set out in some written
materials included in the bill packets, which said that, if
HB 160 was enacted, a victim could still sue a building
owner in the event that the owner did not adequately
maintain a building, resulting in its collapse. He added
that in that instance, designers would be absolved of
responsibility and the owner held accountable for the
damage. He stated that his amendment would allow for an
owner to "reasonably know" that there was a problem with a
building and either report the problem to design
professionals or fix the problem.
REPRESENTATIVE NORDLUND added that the amendment provided
that a defect would have to be discovered, or could
reasonably be discovered, within ten years after a
building's completion.
Number 306
CHAIRMAN PORTER understood the intent of the amendment to be
to relieve owners of responsibility for what otherwise would
have been determined to be design defects, but not improper
maintenance.
Number 322
REPRESENTATIVE NORDLUND said that it was the intent of his
amendment that if an owner could see that there was a crack
in the beam of a building and did not report that, then the
owner would be responsible and the design professionals
would be absolved. He MOVED the AMENDMENT.
Number 327
REPRESENTATIVE PHILLIPS OBJECTED.
Number 331
MR. RITTER commented that Representative Nordlund's
amendment seemed to remove the statute of repose.
Number 349
REPRESENTATIVE PHILLIPS shared Mr. Ritter's opinion. For
that reason, she said, she opposed the amendment.
Number 354
REPRESENTATIVE DAVIDSON asked Representative Phillips how
the amendment would negate the statute of repose.
Number 358
CHAIRMAN PORTER asked Mr. Winner to address the effect of
the amendment.
Number 360
MR. WINNER said that if an owner or a lessee knew of a
problem, or should have known about a problem after the ten-
year period, then the amendment would protect the design
professionals from lawsuits. If, however, the owner, or the
lessee, or the victim, knew about or should have known about
the problem with the building, then the design professionals
would be covered by the statute of repose and could not be
sued after ten years. He added that if a defect were of a
type that no one could discern it during the first ten
years, then a suit could be brought against the designers.
CHAIRMAN PORTER recommended that committee members vote
against the amendment, as it would negate the effect of
HB 160.
Number 402
REPRESENTATIVE NORDLUND commented that the amendment would
not negate the effect of HB 160 in every situation.
CHAIRMAN PORTER stated that the amendment would be the issue
that would cause the litigation to occur, as opposed to not
occurring. He called for a roll call vote. Representatives
Nordlund and Davidson voted "YEA." Representatives
Phillips, Kott, Green, James, and Porter voted "NAY." And
so, AMENDMENT NO. 2 FAILED.
Number 419
REPRESENTATIVE NORDLUND MOVED AMENDMENT NO. 3.
Number 422
REPRESENTATIVE PHILLIPS OBJECTED.
Number 424
REPRESENTATIVE NORDLUND indicated that the amendment
provided that the ten-year statute of repose would not apply
to design professionals in cases of negligence.
Number 434
CHAIRMAN PORTER spoke against the amendment. He mentioned
that the difference between simple negligence and gross
negligence varied on a case-by-case basis. In general
terms, he said, the amendment grossly reduced the level of
negligence involved. In some cases, he said, simple
negligence was found as the result of a simple, honest,
mistake.
Number 449
REPRESENTATIVE NORDLUND expressed concern for victims and
their ability to collect damages. Victims should be allowed
to bring suit for mistakes made by design professionals,
whether as a result of gross or simple negligence.
Number 459
REPRESENTATIVE PETE KOTT called the members' attention to
page 2, line 20 of HB 160, which also addressed gross
negligence. He asked if that language would also need to be
amended, in order to comport with Representative Nordlund's
amendment.
Number 468
REPRESENTATIVE NORDLUND replied that the language to which
Representative Kott had referred was part of the "findings"
section, and would not become a permanent part of the law.
A roll call vote was taken on amendment no. 3.
Representatives Davidson and Nordlund voted "YEA."
Representatives Kott, Phillips, James, and Porter voted
"NAY." And so, AMENDMENT NO. 3 FAILED.
REPRESENTATIVE KOTT made a MOTION to MOVE HB 160 out of
committee with individual recommendations and a zero fiscal
note.
Number 484
REPRESENTATIVE DAVIDSON OBJECTED. He said that it appeared
that the legislature was giving designers a license to
design for ten years and no more. "Who better than
architects and engineers knew where a building's weaknesses
were?" he asked. He spoke against HB 160. He asked why the
legislature wanted to create more victims and encourage
professionals to do less than the very finest work. He
cited Mr. Ritter's testimony about never having faced a
claim in fifteen years. He said that he would vote against
moving the bill out of committee.
Number 518
CHAIRMAN PORTER indicated that he intended to support
HB 160. In his opinion, the bill leveled the playing field
for design professionals. If, he said, insurance rates were
regionalized, it was not fair that Alaska's design
professionals were not protected, while their counterparts
in other states were. Regarding the question of who would
pay if HB 160 were enacted, he submitted that the bill did
not cover owners for very obvious reasons, as owners were
required to maintain insurance on their property.
REPRESENTATIVE DAVIDSON OBJECTED to the motion.
CHAIRMAN PORTER called for a roll call vote.
Representatives Kott, Phillips, James, and Porter voted
"YEA." Representatives Nordlund and Davidson voted "NAY."
And so, HB 160 was PASSED out of committee.
CHAIRMAN PORTER announced that the committee would next
address SB 54.
SB 54: OFFENSES BY JUVENILE OFFENDERS
Number 559
SENATOR RICK HALFORD, PRIME SPONSOR of SB 54, said that his
bill addressed a series of juvenile justice issues. First,
he said, the bill addressed which juveniles would be tried
as adults, how and why. He added that SB 54 also addressed
restitution, public information, information with regard to
civil suits, and place of incarceration.
Number 570
REPRESENTATIVES KOTT and JAMES left at 3:12 p.m.
SENATOR HALFORD stated that SB 54 required that juveniles
over the age of 16, who committed major felonies, be tried
as adults. The bill also set out conditions under which
juveniles as young as 14 could be tried as adults, he added.
The sponsor said that SB 54 provided that confidentiality
protection did not apply for juveniles over the age of 16,
after they were adjudicated as delinquent. His goal was to
consider the victims of juvenile crimes, as well as the
perpetrators. He commented that in each area of the bill,
the committee would probably want to address substantive as
well as technical questions.
SENATOR HALFORD commented that the Senate's position on
juvenile justice reform was not the only acceptable
position, and expressed his willingness to work with the
House Judiciary Committee on SB 54. He stated that the
state should strengthen juvenile justice statutes with
regard to trials, restitution, information, and deterrence.
Number 595
REPRESENTATIVE DAVIDSON asked the sponsor what was lacking
in the version of SB 54 which the Senate had passed.
Number 599
SENATOR HALFORD said that there were a number of components
of the juvenile justice system. Senate Bill 54 addressed
the deterrence issue, he said. He expressed an opinion that
the legislature should also address laws regarding runaways,
a boot camp bill, and other components of the juvenile
justice system.
Number 612
REPRESENTATIVE KOTT returned to the meeting at 3:15 p.m.
Number 619
REPRESENTATIVE DAVIDSON asked the sponsor what provision of
SB 54 he thought would be the most effective deterrent to
juvenile crime.
Number 622
SENATOR HALFORD replied that the fear of sure and sufficient
punishment would be increased by the passage of SB 54. He
believed that some juveniles now felt they could get away
with murder.
Number 630
REPRESENTATIVE NORDLUND stated that it appeared that one
rationale behind SB 54 was that juveniles could make
decisions as adults. Yet, he said, laws still limited the
age of majority with regard to voting and drinking. He also
cited Senator Halford's opinion that the legislature should
enact laws regarding runaways. He saw the sponsor espousing
conflicting philosophies. He asked Senator Halford to
comment.
Number 650
SENATOR HALFORD responded by saying that with regard to
minor crimes which did not threaten human life, he
recommended cutting juvenile offenders some slack and
working toward rehabilitating those juveniles. However, he
said that in the situation of a 15-year-old who contemplated
and carried out a murder, that juvenile had made a lifetime
decision for the victim and a lifetime decision for him- or
herself.
Number 665
REPRESENTATIVE NORDLUND reminded the committee members that
current law contained a procedure for waiving juvenile
offenders into adult court. He expressed his opinion that
the current procedure worked. He noted that SB 54 did not
seem to provide for mitigating circumstances, such as a
child murdering his or her parents after enduring years of
sexual abuse.
Number 680
SENATOR HALFORD, addressing Representative Nordlund's
contention that current law was adequate, mentioned a recent
Court of Appeals ruling which held that the state could not
force a juvenile offender to undergo a psychiatric
evaluation. He said that based on that ruling, it would
become more difficult for the state to deal with certain
juvenile justice issues.
Number 686
REPRESENTATIVE DAVIDSON commented that some children reached
the age of 16 after facing tremendous disadvantages their
entire lives. He asked Sen. Halford to address how SB 54
would allow for fair treatment of such disadvantaged
juveniles.
Number 697
SENATOR HALFORD stated that the entire criminal justice
process allowed for a great deal of leeway with regard to
the kind of charge that was filed, and whether or not the
state pursued a waiver of a juvenile into adult court. He
expressed his opinion that the criminal justice system had
many tools with which to address mitigating circumstances.
Number 704
REPRESENTATIVE DAVIDSON asked Senator Halford if he believed
that hard-core juvenile offenders would be guided by the
fear of sure and sufficient punishment.
Number 713
SENATOR HALFORD replied that SB 54 was a step in the right
direction.
HB 100: PROSECUTION OF JUVENILE FELONS
TAPE 93-43, SIDE A
Number 000
DEAN GUANELI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW (DOL), said that this was the second time
he had testified before the committee on the issue of
juvenile waivers. The first time, he said, he had addressed
Representative Con Bunde's juvenile waiver bill, HB 100, and
had urged that the committee members look very closely at
specific offenses for which an automatic waiver into adult
court was being proposed. He said that when he had last
testified on juvenile waivers, the governor's juvenile
waiver bill had not yet been introduced.
MR. GUANELI said that the governor's juvenile waiver bill
had since been introduced. That bill, he noted, took a
narrower approach to juvenile waivers than did SB 54 and HB
100, at the urging of the Department of Health and Social
Services (DHSS).
MR. GUANELI commented that the juvenile justice system was
based on a presumption that many juvenile offenders were
treatable, very quickly, under the juvenile system. He
expressed his opinion that that presumption was not valid in
all cases, particularly with regard to murder offenses. The
juvenile justice system could, in his opinion, better deal
with most offenses other than murder. He added that the
DHSS shared that opinion.
MR. GUANELI mentioned that DOL and DHSS officials were
concerned that some 16- and 17-year-olds would be receiving
presumptive sentences in adult court. He noted that judges
already experienced a great deal of difficulty when handing
down presumptive sentences for 18- and 19-year-olds. He
again urged the committee to look carefully at which crimes
they wished to include in a juvenile waiver bill.
Number 126
REPRESENTATIVE JAMES returned to the committee at 3:26 p.m.
MR. GUANELI mentioned that if a 17-year-old sold drugs to a
13-year-old, and drug selling offenses were included in a
juvenile waiver law, that 17-year-old would be subject to a
mandatory minimum 5-year jail sentence. He mentioned other
crimes which carried mandatory, stiff jail sentences. He
questioned whether the committee felt that these mandatory
sentences were appropriate for juvenile offenders.
MR. GUANELI appreciated Senator Halford's comment regarding
prosecutors' discretion to charge juveniles with lesser
offenses in order to get those juveniles out of the adult
justice system. However, he noted that if the law dictated
that a certain type of conduct, committed under certain
circumstances, ought to be punished in a certain way, it was
his belief that it would be undesirable for prosecutors to
be intentionally undercutting the law.
MR. GUANELI stated that the committee should look into the
effect on the Department of Corrections (DOC) of a broadly-
written juvenile waiver bill. If the bill only applied to
murder cases, he said, the DOC would only receive a handful
of new prisoners. But, he said, a broader juvenile waiver
bill would result in more new prisoners for the DOC to
manage. He questioned whether the DOC would be able to
handle several dozen additional offenders every year.
MR. GUANELI understood that the DOC currently experienced
difficulty in segregating various segments of the prison
population, including pre-trial offenders, female prisoners,
and mentally-ill prisoners. He questioned whether the DOC
was the best agency for dealing with a large number of very
young offenders. Mr. Guaneli reiterated his recommendation
that the committee study the issue of juvenile waivers very
carefully.
MR. GUANELI had some additional comments to make regarding
records. However, he said that before getting into the
details of SB 54, he would like for the committee to hear
from the Attorney General.
Number 197
ATTORNEY GENERAL CHARLIE COLE expressed his opinion that
SB 54 should have a narrow focus, limited to juveniles who
committed first- or second-degree murder. He commented that
the present system worked reasonably well when applied to
other offenses currently covered by SB 54. On the other
hand, he stated that times had changed, making 16- and 17-
year-olds a different societal group than they had been when
he was a young person. As such, he said that they knew what
they were doing and ought to be treated as adults.
MR. COLE commented that if it was appropriate for a youth to
be charged with assault with intent to kill, then
prosecutors should charge him or her with that offense
instead of a lesser offense. He added that prosecutors and
law enforcement officials should be given the freedom to
exercise their own sound judgment with regard to what
offense a youth should be charged with.
Number 271
REPRESENTATIVE DAVIDSON asked Mr. Cole if he was asking the
committee not to disregard the recommendations of
prosecutors. He asked Mr. Cole if he was saying that SB 54
did not allow prosecutors as much leeway as they currently
enjoyed.
Number 284
MR. COLE replied that if he had understood the question,
then the answer was "yes." He commented that prosecutors
and law enforcement officers should be able to charge
offenders with the appropriate offense within their
discretion, rather than some lesser offense, simply in order
to get around charging a young offender as an adult.
Number 302
CHAIRMAN PORTER was struck by the Attorney General's
comparison between murder and assault with intent to kill.
Number 322
MR. COLE admitted his illustration was a poor one. He
stated that he was interested in drawing the line at the
point at which the specific intent to take human life was
formed.
Number 341
REPRESENTATIVE PHILLIPS commented that, in her opinion, a
youth who sold drugs could be said to possess the intent to
take human life. She asked the Attorney General how he
could draw a firm line.
REPRESENTATIVE DAVIDSON left the committee at 3:36 p.m.
Number 352
MR. COLE did not disagree with Representative Phillips. He
stated that it was difficult to choose a cut-off point. He
said that the governor had to make a tactical decision
regarding the cut-off point, because of a desire to get a
juvenile waiver bill passed this year. In that light, he
said, offenses which the public pretty unanimously supported
for waiver to the adult justice system were chosen to be
included in the bill. He added that the waiver process
could always be tinkered with later, in order to include
more offenses.
CHAIRMAN PORTER commented that the committee was losing
members, due to the late hour. He stated that the committee
would need to draft a committee substitute for SB 54,
because of technical problems in the existing bill. He
announced that the bill would be brought back before the
committee at a time uncertain.
Number 408
REPRESENTATIVE PHILLIPS asked that the committee members be
provided with an outline of the differences between the
governor's juvenile waiver bill and Senator Halford's.
REPRESENTATIVE PHILLIPS left the committee at 3:40 p.m.
Number 425
LIZ DODD, representing the ALASKA CHAPTER OF THE AMERICAN
CIVIL LIBERTIES UNION, commented that the committee was
discussing the trial venue of juvenile offenders. She
stated that the Constitution compelled the state to try
offenders in a venue which would ensure their fair
treatment. She said that while it was easy to agree with
the Attorney General when he said that a person who pulled
the trigger knew what he or she was doing, the assumption
was made that the person on trial was guilty of the offense.
MS. DODD noted that juvenile waiver bills would put juvenile
offenders in the position of trying to convince adult court
officials that they were not guilty of an offense. She
asked the committee to bear in mind that juvenile waiver
bills affected not only where a juvenile would go after
being convicted, but also in what arena he or she would be
tried. She expressed her opinion that one function of the
juvenile justice system was to ensure that young offenders
were in an arena where adults were looking out for their
rights.
MS. DODD indicated that she understood the logic behind
SB 54. She stated that it was probably true that kids today
were somehow different than they used to be. She said that
SB 54 reflected the belief that if society scared kids more,
they would stop committing crimes. However, she said that
juvenile crime was a complex problem, partially a result of
all of the violence inherent in society. She indicated her
lack of support for SB 54.
Number 484
CHAIRMAN PORTER asked Ms. Dodd, "If a juvenile were waived
to adult court, did the standards for conviction not
increase?"
Number 494
MS. DODD replied that as she was not an attorney, she could
not speak to the Chairman's question. She mentioned Mr.
Guaneli's comment that judges currently struggled with
handing out presumptive sentences to 18- and 19-year-old
offenders. She stated that SB 54 would make judges struggle
even harder when handing out presumptive sentences to 16-
and 17-year-olds. She cited some differences between the
juvenile and the adult court systems.
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 3:48 p.m.
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