Legislature(1995 - 1996)
04/17/1996 01:12 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
April 17, 1996
1:12 P.M.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
COMMITTEE CALENDAR
CS FOR SPONSOR SUBSTITUTE FOR SENATE BILL NO. 52(JUD)
"An Act providing for an advisory vote on the issue of capital
punishment."
- HEARD AND HELD
HOUSE BILL 481
"An Act authorizing capital punishment, classifying murder in the
first degree as a capital felony, and allowing the imposition of
the death penalty when certain of those murders are committed
against children; establishing sentencing procedures for capital
felonies; and amending Rules 32, 32.1, and 32.3, Alaska Rules of
Criminal Procedure, and Rules 204, 209, 210, and 212, Alaska Rules
of Appellate Procedure."
- HEARD AND HELD
HOUSE BILL 414
"An Act requiring conciliation panel review in a civil action
against a architect, engineer, or land surveyor; and providing for
an effective date."
- PASSED CSHB 414(JUD) OUT OF COMMITTEE
HOUSE BILL 154
"An Act requiring the Department of Law to provide guidelines
regarding unconstitutional state and municipal takings of private
real property; relating to the taxation of private real property
taken unconstitutionally by state or municipal action; establishing
a time limit for bringing an action for an unconstitutional state
or municipal taking of private real property; and providing for an
effective date."
- PASSED CSHB 154(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 289(FIN) am
"An Act relating to runaways, other minors, and their families or
legal custodians; and amending Rule 7, Alaska Delinquency Rules."
- PASSED HCSCSSB 289(JUD) OUT OF COMMITTEE
PREVIOUS ACTION
BILL: SB 52
SHORT TITLE: ADVISORY VOTE ON CAPITAL PUNISHMENT
BILL VERSION: CSSSSB 52(JUD)
SPONSOR(S): SENATOR(S) TAYLOR, Pearce; REPRESENTATIVE(S) Rokeberg
JRN-DATE JRN-PG ACTION
01/25/95 83 (S) READ THE FIRST TIME - REFERRAL(S)
01/25/95 83 (S) JUD, FIN
02/09/95 222 (S) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS
02/09/95 222 (S) READ THE FIRST TIME - REFERRAL(S)
02/09/95 222 (S) JUD, FIN
02/07/96 (S) JUD AT 1:30 PM BELTZ ROOM 211
02/07/96 (S) MINUTE(JUD)
03/06/96 (S) JUD AT 1:30 PM BELTZ ROOM 211
03/06/96 (S) MINUTE(JUD)
03/12/96 2706 (S) JUD RPT CS 3DP 1DNP NEW TITLE
03/12/96 2707 (S) FISCAL NOTE TO SB & CS (GOV)
03/26/96 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/28/96 2939 (S) FIN RPT 4DP 2NR (JUD) CS
03/28/96 2939 (S) ZERO FNS (DPS, COURT)
03/28/96 2939 (S) PREVIOUS FN (GOV)
03/29/96 (S) RLS AT 12:05 PM FAHRENKAMP RM 203
03/29/96 (S) MINUTE(RLS)
04/09/96 3092 (S) RULES RPT 3CAL 2NR 4/9/96
04/09/96 3093 (S) READ THE SECOND TIME
04/09/96 3093 (S) JUD CS ADOPTED UNAN CONSENT
04/09/96 3093 (S) ADVANCE TO THIRD READING FLD Y11 N5 E4
04/09/96 3094 (S) THIRD READING 4/10 CALENDAR
04/10/96 3123 (S) READ THE THIRD TIME CSSSSB 52(JUD)
04/10/96 3124 (S) MOTION TO RETURN TO 2ND RDG FOR AM 1
04/10/96 3124 (S) RETURN TO SECOND FOR AM 1 Y14 N6
04/10/96 3124 (S) AM NO 1 FAILED Y9 N11
04/10/96 3125 (S) AUTOMATICALLY IN THIRD READING
04/10/96 3126 (S) PASSED Y12 N8
04/10/96 3126 (S) DUNCAN NOTICE OF RECONSIDERATION
04/11/96 3175 (S) TRANSMITTED TO (H)
04/12/96 3689 (H) READ THE FIRST TIME - REFERRAL(S)
04/12/96 3689 (H) JUDICIARY, FINANCE
04/15/96 (H) JUD AT 1:00 PM CAPITOL 120
04/15/96 3784 (H) CROSS SPONSOR(S): ROKEBERG
BILL: HB 481
SHORT TITLE: CAPITAL PUNISHMENT FOR CHILD MURDER
SPONSOR(S): REPRESENTATIVE(S) MASEK, Kohring, Ogan
JRN-DATE JRN-PG ACTION
02/09/96 2686 (H) READ THE FIRST TIME - REFERRAL(S)
02/09/96 2686 (H) STATE AFFAIRS, JUDICIARY
02/29/96 2972 (H) STA REFERRAL WAIVED
02/29/96 2972 (H) REFERRED TO JUDICIARY
04/15/96 (H) JUD AT 1:00 PM CAPITOL 120
04/15/96 (H) MINUTE(JUD)
BILL: HB 414
SHORT TITLE: MANDATORY MEDIATION/DESIGN PROF LAWSUITS
SPONSOR(S): REPRESENTATIVE(S) GREEN
JRN-DATE JRN-PG ACTION
01/12/96 2428 (H) READ THE FIRST TIME - REFERRAL(S)
01/12/96 2429 (H) LABOR & COMMERCE, JUDICIARY
01/29/96 (H) L&C AT 3:00 PM CAPITOL 17
01/29/96 (H) MINUTE(L&C)
01/31/96 (H) L&C AT 3:00 PM CAPITOL 17
01/31/96 (H) MINUTE(L&C)
02/07/96 (H) L&C AT 3:00 PM CAPITOL 17
02/07/96 (H) MINUTE(L&C)
02/21/96 (H) L&C AT 3:00 PM CAPITOL 17
02/21/96 (H) MINUTE(L&C)
03/06/96 (H) L&C AT 3:00 PM CAPITOL 17
03/06/96 (H) MINUTE(L&C)
03/08/96 3023 (H) L&C RPT CS(L&C) NT 4NR
03/08/96 3023 (H) DP: KOTT, SANDERS, PORTER, ROKEBERG
03/08/96 3023 (H) ZERO FISCAL NOTE (DCED)
03/22/96 (H) JUD AT 1:00 PM CAPITOL 120
03/22/96 (H) MINUTE(JUD)
04/17/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 154
SHORT TITLE: REGULATORY TAKING OF PRIVATE PROPERTY
SPONSOR(S): REPRESENTATIVE(S)
KOHRING,Rokeberg,Kott,Kelly,Vezey,Martin,Barnes
Ogan,G.Davis,James,Mulder,Foster
JRN-DATE JRN-PG ACTION
02/03/95 237 (H) READ THE FIRST TIME - REFERRAL(S)
02/03/95 237 (H) CRA, JUD, FIN
02/16/95 (H) CRA AT 1:00 PM CAPITOL 124
02/16/95 (H) MINUTE(CRA)
02/21/95 (H) CRA AT 1:00 PM CAPITOL 124
02/21/95 (H) MINUTE(CRA)
03/01/95 550 (H) COSPONSOR(S): ROKEBERG
03/09/95 (H) CRA AT 1:00 PM CAPITOL 124
03/09/95 (H) MINUTE(CRA)
03/16/95 (H) CRA AT 1:00 PM CAPITOL 124
03/16/95 (H) MINUTE(CRA)
03/24/95 919 (H) COSPONSOR(S): KOTT
03/25/95 (H) CRA AT 1:00 PM CAPITOL 124
03/25/95 (H) MINUTE(CRA)
04/20/95 (H) CRA AT 1:00 PM CAPITOL 124
04/20/95 (H) MINUTE(CRA)
04/21/95 1421 (H) CRA RPT CS(CRA) NT 1DP 1DNP 2NR 1AM
04/21/95 1421 (H) DP: VEZEY
04/21/95 1422 (H) DNP: ELTON
04/21/95 1422 (H) NR: AUSTERMAN, IVAN
04/21/95 1422 (H) AM: KOTT
04/21/95 1422 (H) INDETERMINATE FISCAL NOTE (LAW)
04/21/95 1422 (H) 2 FISCAL NOTES (CRA, DNR)
04/21/95 1422 (H) REFERRED TO JUDICIARY
11/21/95 (H) JUD AT 10:00 AM JUNEAU LIO
01/08/96 2382 (H) COSPONSOR(S): KELLY, VEZEY, MARTIN
01/09/96 2396 (H) COSPONSOR(S): BARNES
01/10/96 2404 (H) COSPONSOR(S): OGAN, G.DAVIS
01/11/96 2418 (H) COSPONSOR(S): JAMES, MULDER
01/19/96 (H) JUD AT 1:00 PM CAPITOL 120
01/19/96 (H) MINUTE(JUD)
01/31/96 2586 (H) COSPONSOR(S): FOSTER
02/02/96 (H) JUD AT 1:00 PM CAPITOL 120
02/02/96 (H) MINUTE(JUD)
02/16/96 (H) JUD AT 1:00 PM CAPITOL 120
02/16/96 (H) MINUTE(JUD)
04/17/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 289
SHORT TITLE: MINORS, ESP. RUNAWAYS, & THEIR FAMILIES
SPONSOR(S): SENATOR(S) FRANK, Miller, R.Phillips, Halford, Green,
Taylor, Leman, Kelly, Torgerson, Hoffman, Pearce, Rieger;
REPRESENTATIVE(S) Kelly
JRN-DATE JRN-PG ACTION
02/12/96 2382 (S) READ THE FIRST TIME - REFERRAL(S)
02/12/96 2382 (S) JUDICIARY
02/26/96 (S) JUD AT 1:30 PM BELTZ ROOM 211
02/26/96 (S) MINUTE(JUD)
02/26/96 (S) MINUTE(JUD)
02/28/96 (S) MINUTE(JUD)
02/28/96 2578 (S) COSPONSOR(S): GREEN, TAYLOR
02/29/96 2597 (S) JUD RPT CS 3DP 1NR SAME TITLE
02/29/96 2597 (S) INDETERMINATE FISCAL NOTE SB & CS
(DPS)
02/29/96 2597 (S) ZERO FISCAL NOTES SB & CS (ADM-2, LAW)
03/06/96 (S) RLS AT 12:45 PM FAHRENKAMP RM 203
03/06/96 (S) MINUTE(RLS)
03/06/96 2636 (S) FIN REFERRAL ADDED-MOVED FROM RLS TO
FIN
03/12/96 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/19/96 (S) FIN AT 9:30 AM SENATE FINANCE 532
03/27/96 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/28/96 (S) FIN AT 8:30 AM SENATE FINANCE 532
04/03/96 (S) RLS AT 1:15 PM FAHRENKAMP RM 203
04/03/96 3043 (S) FIN RPT CS 5DP 2NR NEW TITLE
04/03/96 3043 (S) FISCAL NOTES TO CS (DHSS-5)
04/03/96 3043 (S) INDETERMINATE FN TO CS (DPS)
04/03/96 3043 (S) ZERO FN TO CS (LAW)
04/03/96 3043 (S) PREVIOUS ZERO FNS (ADM-2)
04/04/96 3065 (S) FN TO FIN CS REPLACES 4/3 ZERO FN (LAW)
04/09/96 3093 (S) FISCAL NOTE (COURT)
04/09/96 3092 (S) RULES TO CALENDAR 4/9/96
04/09/96 3096 (S) READ THE SECOND TIME
04/09/96 3096 (S) FIN CS ADOPTED Y11 N5 E4
04/09/96 3096 (S) ADVANCE TO THIRD READING FLD Y11 N5 E4
04/09/96 3097 (S) THIRD READING 4/10 CALENDAR
04/09/96 3096 (S) COSPONSOR(S): LEMAN, KELLY,
04/09/96 3096 (S) TORGERSON, HOFFMAN, PEARCE, RIEGER
04/10/96 3128 (S) READ THE THIRD TIME CSSB 289(FIN)
04/10/96 3128 (S) PASSED Y14 N6
04/10/96 3129 (S) COURT RULE FAILED Y13 N7
04/10/96 3129 (S) DUNCAN NOTICE OF RECONSIDERATION
04/11/96 3159 (S) RECON TAKEN UP - IN THIRD READING
04/11/96 3160 (S) RETURN TO SECOND FOR AM 1 UNAN CONSENT
04/11/96 3160 (S) AM NO 1 ADOPTED UNAN CONSENT
04/11/96 3160 (S) AUTOMATICALLY IN THIRD READING
04/11/96 3160 (S) PASSED ON RECONSIDERATION Y20 N-
04/11/96 3160 (S) COURT RULE(S) SAME AS PASSAGE
04/11/96 3176 (S) TRANSMITTED TO (H)
04/12/96 3690 (H) READ THE FIRST TIME - REFERRAL(S)
04/12/96 3690 (H) JUDICIARY, FINANCE
04/12/96 3720 (H) CROSS SPONSOR(S): KELLY
04/17/96 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JEFF LOGAN, Legislative Assistant
to Representative Joseph Green
Alaska State Legislature
Capitol Building, Room 24
Juneau, Alaska 99801
Telephone: (907) 465-4931
POSITION STATEMENT: Testified to HB 414 as sponsor
STEVE CONN, Executive Director
Alaska Public Interest Research Group
P.O. Box 101093
Anchorage, Alaska 99510
Telephone: (907) 278-3661
POSITION STATEMENT: Testified on HB 414 and HB 154
COLIN MAYNARD
Alaska Professional Design Council
510 L Street, Suite 200
Anchorage, Alaska 99501
Telephone: (907) 27402236
POSITION STATEMENT: Testified on HB 414
RUSS WINNER, Trial Lawyer's Representative
900 West 5th, Suite 700
Anchorage, Alaska 99501
Telephone: (907) 272-9522
POSITION STATEMENT: Testified on HB 144
CHRIS CHRISTENSEN, General Counsel
Office of Administrative Director
Alaska Court System
303 K Street
Anchorage, Alaska 99501-2084
Telephone: (907) 264-8228
POSITION STATEMENT: Testified on HB 144
MIKE FORD, Attorney
Legislative Legal Counsel
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Testified on HB 144
REPRESENTATIVE VIC KOHRING
Alaska State Legislature
Capitol Building, Room 428
Juneau, Alaska 99801-1182
Telephone: (907) 465-2186
POSITION STATEMENT: Testified on HB 154
DOUG YATES
P.O. Box 221
Ester, Alaska 99725
Telephone: (907) 479-8300
POSITION STATEMENT: Testified on HB 154
STAN THOMPSON
P.O. Box 217
Kenai, Alaska 99611
Telephone: (907) 776-8721
POSITION STATEMENT: Testified on HB 154
ANTHONY CRUPI, Volunteer
Alaska Environmental Lobby
4106 MacInnes Street
Anchorage, Alaska 99500
Telephone: (907) 463-3366
POSITION STATEMENT: Testified on HB 154
TOM BOUTIN, State Forester
Division of Forestry
Department of Natural Resources
400 Willoughby Avenue, 3rd Floor
Juneau, Alaska 99801-1724
Telephone: (907) 465-3379
POSITION STATEMENT: Testified on HB 154
PAM LABEAU, President
Alaska State Chamber of Commerce
217 Second Street
Juneau, Alaska 99801
Telephone: (907) 586-2323
POSITION STATEMENT: Testified on HB 154
ALLISON GORDON, Legislative Assistant
Senator Steve Frank
Alaska State Legislature
Capital Building, Room 518
Juneau, Alaska 99801-1182
Telephone: (907) 465-3709
POSITION STATEMENT: Testified on SB 289
L. DIANE WORLEY, Director
Division of Family & Youth Services
Department of Health & Social Services
P.O. Box 110630
Juneau, Alaska 99811-0630
Telephone: (907) 465-3191
POSITION STATEMENT: Testified on SB 289
BRUCE RUBLE
1221 Third Avenue
Fairbanks, Alaska 99701
Telephone: (907) 452-2345
POSITION STATEMENT: Testified on SB 289
SAM HAYWOOD
Muldoon Road, Number 561
Anchorage, Alaska 99504
Telephone: (907) 272-9522
POSITION STATEMENT: Testified on SB 289
AL NEAR
P.O. Box 80847
Fairbanks, Alaska 99708
Telephone: (907) 479-4090
POSITION STATEMENT: Testified on SB 289
DEIDRE PHAYER, Executive Director
Covenant House Alaska
609 F Street
Anchorage, Alaska 99501
Telephone: (907) 272-1255
POSITION STATEMENT: Testified on SB 289
LORI BACKES
1608 Scenic Loop
Fairbanks, Alaska 99709
Telephone: (907) 479-4723
POSITION STATEMENT: Testified on SB 289
TOM BEGICH, Chairman
State Student Justice Legislative Committee and
National Coalition of Juvenile Justice
7540 Huckleberry Circle
Anchorage, Alaska 99502
Telephone: (907) 243-7713
POSITION STATEMENT: Testified on SB 289
LESLIE DRUMHILLER
1906 Southern
Fairbanks, Alaska 99709
Telephone: (907) 479-6104
POSITION STATEMENT: Testified on SB 289
JUDY SHIFFLER
929 Reindeer Drive
Fairbanks, Alaska 99709
Telephone: (907) 479-6104
POSITION STATEMENT: Testified on SB 289
CANDY CARROLL
1221 3rd Avenue
Fairbanks, Alaska 99701
Telephone: (907) 452-2345
POSITION STATEMENT: Testified on SB 289
ROBIN RANDALL
1743 Willow Street
Fairbanks, Alaska 99709
Telephone: (907) 479-9123
POSITION STATEMENT: Testified on SB 289
ACTION NARRATIVE
TAPE 96-54, SIDE A
Number 000
CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting
to order at 1:12 p.m. Members present at the call to order were
Representatives Green, Bunde and Toohey. Representatives
Finkelstein and Vezey arrived at their respective times, 1:13 p.m.
and 1:30 p.m. Representative Bettye Davis was absent.
SB 52 - ADVISORY VOTE ON CAPITAL PUNISHMENT
HB 481 - CAPITAL PUNISHMENT FOR CHILD MURDER
CHAIRMAN PORTER noted that the committee had heard the two bills
concerning the death penalty on Monday, April 15, 1996. The public
hearing related to this legislation was completed. Chairman Porter
said the fiscal notes on both bills were wanting. Neither bill has
a fiscal note from the Office of the Public Defender or the Office
of Public Advocacy. The fiscal notes on the advisory vote
legislation only address the cost of the election. He thought it
was the wish of the committee to get a better feel for what the
implication would be of the cost to implement the death penalty if
the advisory vote was successful.
CHAIRMAN PORTER stated that for this reason he had notified Senator
Taylor's office and Representative Masek's office and asked them to
comply with this request to get complete fiscal notes into the
Judiciary Committee before they proceed further. He said they
would bring both these bills up again once this information is
received.
HB 414 - MANDATORY MEDIATION/DESIGN PROF LAWSUITS
Number 100
JEFF LOGAN, Legislative Assistant for Representative Green came
forward to testify on HB 414. Mr. Logan thanked Chairman Porter
for his indulgence with this bill. The original version of this
bill, through all it's incantations and presently, has had as it's
goal to relieve the burden of design professionals from civil
actions. In the Labor and Commerce Committee there were a number
of issues raised and Chairman Porter had asked that these issues be
addressed before it's referral to the Judiciary Committee. In the
meantime, there have been a number of time constraints, both on the
sponsor's part and on the parties affected, the trial attorneys and
professional designers. Finally, he felt as though they had a
committee substitute which could be submitted to the committee,
which is version R, dated April 2, 1996. In addition, the trial
attorneys and the professional designers have continued to work to
come to a compromise. Yesterday at 9:31 a.m. he received a
facsimile with four additional points. He took these to the legal
division. Mike Ford worked very quickly to put these concerns into
amendment form. Mr. Logan disseminated these to committee members
and the Anchorage LIO so that witnesses could have them. He wasn't
sure the sponsor will move these amendments or not. He felt as
though there would be somebody on line to speak to these
amendments.
MR. LOGAN noted that what the present committee substitute does is
use the civil rules of procedure which are already in place and
simply stated, makes mediation mandatory for a civil action against
a design professional. If a suit is filed against an architect or
engineer the parties have to go to mediation. Discovery is allowed
under the auspices of a civil rule already in place. This is
mandatory and there is a time line to do it. He then outlined
amendments R.1,2, & 3. The first one stated that not only are
architects, engineers and land surveyors covered under this
legislation, but also all design professionals. R.2 allows a
waiver option. If both parties agree that mediation will not
result in any benefit, they can waive this procedure and go
straight to court. R.3 allows that if the costs of mediation are
to be born by the defendant because the judge has decided that the
plaintiff is indigent, the defendant can waive this process to
avoid having to pay for the entire mediation.
Number 556
REPRESENTATIVE JOSEPH GREEN added to what Mr. Logan had stated.
The first version of this legislation was a little over eight pages
long, modeled after Hawaii's version and the present committee
substitute
is presently only about a page and a half long. He lauded the
parties who came together and worked on it.
Number 626
STEVE CONN, Executive Director, Alaska Public Interest Research
Group, testified on HB 414. He felt as though the consumer should
fill a seat, as well as the design professionals and the attorneys
in arrangements of re-working legal procedure such as this. He was
concerned about this and wanted to talk briefly from the consumer's
perspective. He is a proponent of mediation, but he is concerned
when certain professionals are given these types of procedural
advantages. It's critical to be aware of the relevant power
equation such this when it appears to be ideally a situation where
people can resolve their differences. Usually these types of
situations turn out best when the alternatives to this are
relatively equal for both.
MR. CONN stated that he was concerned about home owners and
consumers who may have a legal claim and have a limited amount of
resources, not particularly indigent, but simply middle class
people pursuing a legal claim. Certainly they should be encouraged
to sit down and settle their differences, but under this
legislation they'd would be impelled to move into this situation,
akin to the type of thing that some people find fault with in the
bureaucratic realm when exhausting one's administrative remedies.
Perhaps the only way this thing could be resolved is through
litigation, but here a further pressure is placed upon the would be
plaintiff. Not in all cases.
MR. CONN noted that he was concerned about how the rules of
evidence would apply to information of necessity which emerges as
this mediation occurs. Is that realm of compromise seeking and the
information drawn therefrom going to be in litigation, will a
record be kept, many complications arise in this area. He noted
that the capacity for waiver is guided and controlled by the
defendant who might be in a situation where they're dealing with
ordinary, middle-class people and have the "deeper pockets." He
wondered if they should consider arbitration instead. Mr. Conn
offered that this has been a well discussed, well worked out bill,
but the consumers seat at the table has been left empty.
Number 900
COLIN MAYNARD, Alaska Professional Design Council testified by
teleconference from Anchorage on HB 414. He stated that for over
the last three or four months they have attempted to reduce the
number of frivolous suits which their profession sees. At most of
the hearings the trial attorneys have said they agree with the
goal. They finally came to agree with the concept of mandatory
mediation. He went into further detail of these negotiations.
MR. MAYNARD responded to Mr. Conn's comment. This bill relates to
all civil actions, not just design professionals. The trial
attorneys did not want to have special interest legislation.
Basically this legislation allows for a discovery process to last
no more than 60 days, then mediation takes place. Cases could
potentially be settled within 60 to 90 days, rather than six months
to two years dragging the whole process out. This procedure will
cut down on costs and (indisc. - paper shuffling.)
Number 1038
RUSS WINNER, Trial Lawyers Representative testified by
teleconference from Anchorage on HB 414. He said he had just a few
minutes ago been handed the amendments to version R of this
legislation. The Trial Lawyer's view is that mandatory mediation
shortly after what's required of the new Civil Rule 26 which is an
automatic and mandatory exchange of discovery and calling for
mediation of the parties after this time would be a good idea.
They support this idea and feel that it may help to resolve
litigation sooner. If it doesn't resolve the litigation, it may
help the parties to focus their thinking and allow for at least a
partial settlement of the defendants who might not be significant
to the case.
MR. WINNER added that the Trial Lawyers feel this is an idea which
ought to apply across the board and not just to one type of
defendant. They support the idea of mediation occurring after the
exchange of discovery rather than before the initiation of a
lawsuit because after exchange of discovery the parties will know
much of what they need to know in regards to settling the case.
What is contemplated here is that mediation will occur before
depositions, but after the exchange of written discovery which is
required by the rule. This is not an inappropriate time for
parties to think about what the case really holds in store. The
deposition phase is the next major phase of a lawsuit. If the case
can be settled, or partially settled, simplified before depositions
start is a good idea. He felt as though all the parties could
agree to this.
MR. WINNER noted that there were some "what if" questions which he
felt needed to be thought through. What if for example, one of the
litigants is indigent and can't afford a mediator? This is
something which needs to be considered. The procedure for
selecting a mediator needs to be considered. He felt as though the
bill should be written so that the parties can engage in mediation
at any time, as long as they've done so within a specified time
period, this would satisfy the requirements.
MR. WINNER added that he saw in the amendments that it's allowed
for all the parties to waive mediation. His experience with
mediation in lawsuits, is that the Rules of Evidence do not play a
role. The parties come before a retired judge or sometimes an
attorney and information is exchanged to the extent that it already
hasn't been done. This "judge" shuttles back and forth between the
parties often ensconced in two different rooms. They try to talk
the parties towards middle ground. What's said on the record in
mediation is not admissible as evidence in a subsequent trial.
Number 1339
REPRESENTATIVE CYNTHIA TOOHEY made a motion to adopt the CS for HB
414, version R as the committee's working document. There being no
objection it was so moved.
Number 1374
REPRESENTATIVE CON BUNDE made a motion to move amendment number one
labeled R.1 for consideration by the committee. Chairman Porter
objected for the purposes of discussion.
REPRESENTATIVE GREEN as sponsor explained. This amendment number
one would have a tendency to broaden the title significantly from
the original title which dealt primarily with architects, engineers
and land surveyors. This amendment would expand to include certain
civil actions. The amendment in it's entirety is as follows:
Page 1, line 1 - 2:
Delete "a civil action against an architect, engineer, or land
surveyor"
Insert "civil actions"
Page 1, line 2, after "Procedure;":
Insert "repealing Rule 72.1, Alaska Rules of Civil Procedure;"
Page 1, line 6:
Delete "AGAINST DESIGN PROFESSIONAL"
Page 1, lines 7 - 8:
Delete "(a) A civil action against a design professional seeking
damages resulting from professional"
Insert "A civil action seeking damages resulting from"
Page 1, line 11, through page 2, line 4:
Delete all material.
Page 2, after line 4:
Insert new bill sections to read:
"*Sec. 2. AS 08.64.326(a)(12); AS 08.68.270(10); AS 09.55.535,
09.55.536, 09.55.560(2), and 09.55.560(3) are repealed.
*Sec. 3. Rule 72.1, Alaska Rules of Civil Procedure, is repealed."
Renumber the following bill sections accordingly.
Page 2, line 7:
Delate "against a design professional"
Insert "seeking damages resulting from negligence"
Number 1431
MIKE FORD, Attorney, Legislative Legal Counsel, Legislative Affairs
Agency, testified by speaker phone on HB 414 and offered to run
through some of the key points related to this amendment. The
change to the title is necessary to reflect the contents of the
bill as amended. Lines 4 and 5 reflect the change to the title
which indicates the repeal of a court rule, a rule which is one
regarding medical malpractice panels. If they were going to
require mandatory mediation, this amendment would repeal provisions
of law which impose arbitration in medical malpractice actions.
Arbitration is not needed in medical malpractice if mandatory
mediation is allowed for in all of these civil actions resulting
from negligence.
MR. FORD continued that these changes are reflected on line 16 and
17 as a series of repealers and these repealers are all related to
medical malpractice arbitration. They've made necessary changes
whereas necessary to eliminate language that limits the bill to
design professionals and to broaden the language to allow it to
apply to any civil action where someone is seeking damages
resulting from negligence. As a result of this a definition of
design professionals is not needed, as in subsection (b) of the CS
adopted. He stated that this was it in a nutshell.
Number 1555
CHRIS CHRISTENSEN, General Counsel, Alaska Court System testified
on HB 414. He noted that he'd only had a brief chance to review
these amendments and he was still trying to ascertain what their
effect might be. As a general rule, the Alaska Supreme Court does
support the concept of alternative dispute resolution. They think
that it's generally a good idea to get people together in order to
solve their problems in a non-adversarial way. This being said,
there are some parts of their civil law in which alternative
dispute resolution can be very successful, for example, with
contract claims. Many contract claims are resolved by arbitration
or mediation and never come to the court system because people seem
to only have money at stake rather than tort type problems, such as
injuries.
MR. CHRISTENSEN stated that another area is family law. Probably
the worst use of the adversarial system is to try to divide up
children and assets in a divorce. Most people would be better
served if they had this handled by a psychologist rather than a
judge. One area of the law in which the court does not believe
alternative dispute resolution is as effective is in the tort area.
Right now better than 95 percent of all tort cases settle without
ever going to trial. This is a tremendously high percentage. The
court doesn't believe that mandatory arbitration or in this case
mediation for tort claims will save the state any money. In the
sense that these cases which go to trial are going to go to trial
anyway, this smaller percentage is made up of three or four
percent. These are the cases where the attorneys just do not flat
agree on the issues to be settled. Some other cases might settle
earlier, this primarily is an advantage to the litigants, not to
the state. Mediation make help litigants, but it won't really save
the state money.
MR. CHRISTENSEN pointed out that the CS before the committee
affects about dozen cases a year. This CS would dramatically
expand the case load which the department did not put a cost on
when originally proposed. Administrative costs may have to be
included. He noted that there was no clear exemption for small
claims in this amendment. He pointed out that there are thousands
of small claims cases which are tort related. Small claims is an
expensive court for the state, it costs the state more to handle a
$2000 case in small claims court than it does in District court,
because of the extra assistance the state gives to litigants and
help with all the forms, etc. The state provides small claim court
because a lot of people can't afford general adjudication. The
process of mediation will price people out of small claims court.
The committee might want to consider this limitation.
MR. CHRISTENSEN further stated that a tort reform bill sponsored by
Chairman Porter was in the senate which provides for mandatory
arbitration. This has produced a fabulously expensive fiscal note
because of the state mandating arbitration or mediation. If a
person has to do this as a condition of exercising their rights
before a judge or jury, the state will have to pay for the cost of
the mediator or the arbitrator if one of the parties cannot pay for
it. Mediation as it's done is substantially less expensive than
the arbitration in the tort reform bill. This does not mandate the
use of a retired judge or a lawyer. These individuals normally
charge twice as much as a non-attorney mediator in Anchorage.
MR. CHRISTENSEN also noted that if it's the legislatures intention
that judges be allowed to order a non-indigent party to pay for
both the parties involved expenses, it would be well advised for
the legislature to specifically say this instead of relying on
existing court rules.
Number 1767
CHAIRMAN PORTER spoke against the amendment for a number of
reasons. The first, as it's been mentioned, this brings into
consideration for this process a multitude of additional cases
which were not anticipated during the lengthy discussions and
crafting of the present Committee Substitute. He felt as though it
would be grossly unfair for them to whisk this Committee Substitute
out of committee without the input from the professions affected by
this amendment, especially the medical profession when they're
deleting a practice which they support. Additionally, from a self-
serving, political point of view, he would never let this title out
of the Judiciary Committee. With this in mind he asked if there
was further discussion of this amendment. He noted that the
objection was maintained and asked for a roll call vote.
Representatives Toohey, Bunde, Green, Vezey and Porter voted no.
Representative Finkelstein voted yes. Amendment number one failed.
Number 1865
REPRESENTATIVE BUNDE made a motion to move amendment number two
outlined as follows:
Page 1, line 9, following "mediation":
Insert ", unless all the parties to the civil action agree to waive
mediation"
CHAIRMAN PORTER explained that this amendment would allow if both
parties agree, a waiver of the automatic mediation process. There
being no objection it was so moved.
Number 1887
REPRESENTATIVE BUNDE made a motion to move amendment number three
outlined as follows:
Page, line 10, following "Procedure":
Insert ", except that if the court requires the costs of mediation
be paid by the party defending against the civil action, the
provisions of this section may be waived at the election of the
party defending against the civil action. If more than one party
is defending against the civil action, waiver of mediation is not
allowed unless all defending parties agree to the waiver. For
purposes a waiver allowed under this subsection, "civil action"
does not include a counterclaim, third-party claim, or cross claim"
CHAIRMAN PORTER asked Mr. Christensen if he had any comments
concerning this amendment.
MR. CHRISTENSEN stated that if this amendment was adopted he would
like to see conceptually language added which would generally say
if one of the parties to the litigation is indigent the court may
order the other party to bear the costs. Arguably the judge can
already do this under court rules, but he didn't think most judges
would do so quite frankly. Even if the legislature said that this
was their intention this doesn't mean the judge will always follow
through.
CHAIRMAN PORTER reiterated this concept with the following
language, "If one of the parties were indigent the court may order
the non-indigent party to bear the entire cost of the mediation."
This was offered as a friendly amendment. There being no
objection, this conceptual amendment to amendment number three
passed. The other participants did not have any objections to this
change. Amendment number three also passed.
Number 2030
REPRESENTATIVE DAVID FINKELSTEIN asked for a brief observation from
both Mr. Maynard and Mr. Winter on the bill as amended.
Number 2045
MR. MAYNARD felt as though the changes as amended would be fine and
would be a good procedure to reduce the length of cases, hence
saving money for the courts.
Number 2060
MR. WINNER stated that the trial lawyers do object to a bill which
is tailored to just architects, engineers and land surveyors. They
believe that the court system should be even handed in it's
treatment of cases irrespective of the character or type of claim
or defendant. He said it would be appropriate to hear testimony
from other professions, such as doctors, etc. He urged the
committee to consider this alternative to the rejection of
expansion of the bill.
CHAIRMAN PORTER asked if it would be within the realm of
consideration to think of this legislation as perhaps a test
program to see if after a couple of years it could then be applied
to other professions.
Number 2118
MR. WINNER felt as though this might be a worthwhile idea to think
about. He submitted that the way to do this would have it apply
across the board with a sunset clause.
Number 2130
REPRESENTATIVE GREEN stated that he was going to suggest the same
thing. The concern he had though was in the interest of time in
this legislature. He didn't think they would be able to adequately
address this issue, but were they able to give it at least the
interim and as Chairman Porter suggested a year or two and then
come back during the interim and talk to the other professions to
see if in fact this is what they do want.
REPRESENTATIVE BUNDE made a motion to move CSHB 414, version R as
amended with individual recommendations and attached fiscal notes.
There being no objection it was so moved.
HB 154 - REGULATORY TAKING OF PRIVATE PROPERTY
REPRESENTATIVE VIC KOHRING gave a brief overview as reiteration of
what this bill encompasses. Generally HB 154 requires that
government compensates private property owners if the property
owner has experienced a loss in economic value as a result of a
restriction imposed on this private property. He referred to a
work draft in front of the committee which contains changes which
were the result of previous testimony heard. In the spirit of
compromise they have tried to work with those parties who expressed
concerns. There were numerous points of contention on this bill by
individuals, representatives and regulatory agencies. He felt as
though these concerns have been sufficiently addressed in the work
draft before the committee and asked the committee to adopt it as
the new Committee Substitute.
Number 2210
REPRESENTATIVE KOHRING outlined nine specific changes to this
legislation and reviewed them for the committee. First, they
replaced "governmental entities," with "state regulatory agency,
which removed boroughs, municipalities and cities from the
government agencies to which this legislation would apply. Second,
they replaced "government action" and inserted "permit,
certification, approval, or other authorization required for
proposed land use." The original language was too vague. Third,
they changed the "time for bringing action" from five years to
three years. Fourth, they changed the compensation value to fair
market value. They felt as though determining the issue of
property value and the resulting loss of compensation should be
settled in the courts, rather than a person simply having an
appraisal done. Fifth, they removed "forest products" from the
definition of real property. This would remove the annual
permitting for timber buffer zones from being affected. They also
removed the language, "interest in real property," which dealt with
a situation with limited entry permits. This clause wouldn't
necessarily deal with an actual, physical piece of property which
someone has lost value in.
REPRESENTATIVE KOHRING continued. Sixth, they changed the loss in
value threshold from 20 percent to 30 percent. Seventh, the
section entitled, "Principles for Government Action" was removed.
This section said that assertions of threats to public health and
safety were not enough to justify a taking. Eighth, the section
entitled, "Inaccessible Property" was removed. This section said
that compensation had to be paid for a loss of access that created
a loss in value of more than 20 percent. Ninth, and lastly, the
section entitled, "Adjustment of Value for Property Tax," was
removed. This section said that municipalities must adjust the
valuation of the property for taxation purposes. Under the new
version, a person will be allowed to appeal the tax valuation using
existing methods.
Number 2499
REPRESENTATIVE AL VEZEY made a motion to move CSHB 154 as the
committee's working document. There being no objection it was so
moved.
TAPE 96-54, SIDE B
Number 030
DOUG YATES testified by teleconference from Anchorage on HB 154.
He stated that in his opinion this legislation was an effort to
dismantle basic community protections, however, the sponsor's wish
to (indisc. - poor transmission) with a single purpose to turn back
the clock on decades of vital health, safety and environmental
protections. The underlying rational for this bill is found in
business and private interest who have deemed protection
inconvenient with their economic bottom line. He pointed out that
this radical interpretation of property rights has been
consistently rejected by the courts. He reminded the committee
that before a "takings" bill in Colorado went down to defeat, the
Denver Post warned that the measure "may appear innocuous, but it's
actually an attempt to negate the conduct of health, safety and
environmental regulations by saddling the enforcement agencies with
untenable costs."
MR. YATES stated that this bill is not needed, over-reaching and
very costly to implement. He asked the sponsor why there is not a
fiscal note attached to it. On the federal side, SB 605, a
"takings " proposal has been estimated to cost the public $28
billion dollars over seven years. HB 154 is a crass and nutty
attempt which threatens the ability of a community to engage in
responsible government and to successfully conserve it's resources,
protect it's heritage, develop it's economy and protect it's
property. He urged the committee to hold this bill, it's a waste
of the legislature's time and an affront to the citizens of Alaska.
Number 100
STAN THOMPSON testified by teleconference from Kenai on HB 154. He
stated that he came to speak in favor of this legislation and had
with him a work copy dated 1/25/96 and he thought this was a great
bill. Today, however, he received the work draft dated 4/31/96 now
before the committee and found an entirely different bill with most
of it's value gone. As he understood it, the bill only relates to
state government takings with no effect on municipal takings, in
other words no longer affecting takings of cities and boroughs. It
has no teeth. He felt as though this legislation should address
both these entities. Mr. Thompson said he'd still testify in favor
of this legislation since an eighth of a loaf is better than none
at all.
STEVE CONN, Executive Director, Alaska Public Interest Research
Group testified on HB 154. He stated that this group deals with
the problems of consumers throughout the state. He did note the
substantial work that was done on this legislation from it's
original draft. It has moved clearly from a broad ideological
statement regarding the subject of "takings" and the fifth
amendment to an attempt to drive it's concepts forward in
instrumental form. However, this legislation is still loaded with
problems. He asked the committee to reflect on these even as they
sponsor this legislation.
MR. CONN suggested that this legislation will be a fundamental drag
on the ability of the state to do the right job, even a job that
everybody could agree that they should be doing. On a day to day
basis his conception of state government is not that it's overly
intrusive, but that it's essentially non-functional when it comes
to consumer protection. He suggested that this bill is an error
and it should not go forward because largely the fundamental
problem with state government is non-functional. This being the
case, he went further to say that, words in this draft are left
undefined that would be fodder for the attorneys and the board
system, such as "substantial evidence." If the bill is an attempt
to ham string government in the performance of it's duties he felt
as though it will succeed in this.
Number 550
ANTHONY CRUPI, Alaska Environmental Lobby testified on HB 154. He
stated that the Alaska Environmental Lobby has already presented
their testimony in opposition to this legislation. The Lobby
feels as though the recent changes to the bill is an attempt to
address the important concerns with this legislation, but they
still believe that this legislation itself is fatally ill. No
matter how big the band-aid they put on it, the Lobby felt as
though they wouldn't be able to save the patient.
MR. CRUPI noted that instead of improving government, "takings"
legislation such as this bill threatens to cost the state of Alaska
many millions of dollars by making government less efficient and
more costly. There will also be assessment costs, litigation fees
and staggering costs of compensating property owners who claim a
"taking." Who will fund these costs? The taxpayers money will be
used to fund legions of attorneys and pay thousands of claims.
Under the fifth amendment of the constitution property owners have
the right to seek just compensation through judicial process if
they feel as though their property has been unjustly taken by the
government. The lobby feels as though courts are the proper places
for such claims to be heard on their individual merits.
MR. CRUPI added that no legislative blanket can cover the entire
spectrum of individual possibilities envisioned by this
legislation. Modern Democratic government has protected the rights
of property owners throughout time. This bill would destroy the
careful balance between rights and responsibilities. It would
undermine regulations which protect public health and safety and
the environment. For these reasons the lobby opposes HB 154.
Number 560
TOM BOUTIN, State Forester, Division of Forestry, Department of
Natural Resources testified on HB 154. He stated that he had just
had a chance to read the Committee Substitute and noted that it is
a much changed bill from the original. Based on this, the fiscal
note from the department would be much smaller as well. He said he
still had questions of the sponsor, such as the issue with the
removal of "forest products," and related language used such as
"crop" to describe forest products. He mentioned the Forest
Practices Act which the state has the test of "significant harm"
incorporated in it. If any part of the act would not cause
significant harm the land owner has the right to come to the state
and demand that the Forest Practices Act, any part of it be waived
if significant harm won't be caused. The State Forester has to
grant this if significant harm can't be shown.
MR. BOUTIN noted that how this significant harm fits with the
phrase in the Committee Substitute of significant, irrefutable harm
he truly didn't know. Another question which came to mind in
Section 5, "this Act does not apply to statutes, regulations,
ordinances in effect, on the date before the effective date of the
Act." He noted that this clearly does get to the issue of the
Forest Practices Act with it's regulations which have already been
enacted, however, the department does having on-going regulations.
For instance, the Forest Practices Act exempts land owners
including the state, but especially private land owners in having
to do re-forestation in the case of a salvage sale. Land owners
have now asked the state what this means. They have gone through
the public testimony. He explained that they are about ready to
finalize some regulations which would define one, what a salvage
sale is for purposes of a private land owner not wanting to do re-
forestation and two, how in the notification the landowner has to
submit to the state that it would have to have substantial evidence
submitted to the state to show that it is a salvage sale. It
seemed to him that this regulation may run into a problem if this
Committee Substitute was already law. He said he would talk to the
Department of Law.
Number 550
PAM LABEAU, President, Alaska State Chamber of Commerce testified
on HB 154. Ms. LaBeau stated that the Chamber supported the
original version of this legislation and they are disappointed that
it's been weakened to the extent that it has. She stated that they
were part of the idealogy that an eighth of a loaf is better than
none. She urged the committee to pass this legislation.
Number 309
REPRESENTATIVE FINKELSTEIN made a motion to move amendment number
1 as follows:
Page 5, line 5:
Delete "30"
Insert "60"
He explained that this was the threshold where the provision takes
affect. Representative Vezey objected for discussion purposes.
REPRESENTATIVE FINKELSTEIN felt as though an individual would have
to loose over the majority of the value of some property. "This is
only in cases where we're talking about a law that we've passed
that we sat and weighed, we, meaning legislative history, which we
didn't pass them all. The decisions been made with public input,
public testimony on what to be done. The balances of government
have already been used. If we find out there that there's, we
don't believe that public interest is being served that the public
goal being reached is not worthy of any impact it might have on any
individual person we can change the law. We can go and re-write
the law, we can set it up in some way that impact doesn't exist,
but the whole basic point of this kind of governmental action is to
try to balance the needs of all people. There is going to be some
loss. This is just a matter of you think that loss ought to
register. I think that the impact on the community as a whole is
much more important than the impact on the individual. This is the
90 percent that gets used sometimes. This is an attempt to be in
the middle."
Number 700
REPRESENTATIVE KOHRING voiced his objections to what Representative
Finkelstein suggested. He felt as though the amount of 60 percent
is too large. They went from an initial no threshold to 20 percent
and now it's set at 30 percent. He felt as though this was
reasonable. He also spoke to the individual who owns the piece of
property which is the subject of regulatory restrictions and many
times individuals who put their life investment into this property,
to extent this was set on a 60 percent loss would be unfair.
CHAIRMAN PORTER asked if there was any further discussion regarding
this amendment. He then asked for a roll call vote.
Representatives Bunde, Green, Vezey, Toohey and Porter voted no.
Representative Finkelstein voted yes. Amendment number one failed.
Number 750
REPRESENTATIVE FINKELSTEIN then presented amendment number two as
follows:
Page 5, line 4 after "property"
Insert ", unless the action is necessary to avoid or correct a
public or private nuisance"
Page 5, line 7 after "property"
Insert ", unless the action is necessary to avoid or correct a
public or private nuisance"
REPRESENTATIVE FINKELSTEIN explained that this related to the issue
of public and private nuisance. There's been a long history as to
what a nuisance is and this standard pre-dates all of the state and
federal laws. The concept is that someone's in a neighborhood
who's smelting slag iron. This amendment doesn't empower anymore
someone to establish a party as a nuisance, but if they're
established as a nuisance they shouldn't be awarded for any loss of
the use of their property. They've already been found to be a
nuisance and one that needs to be abated. He used the example of
shutting down someone's drug house and possibly having to
compensate them. This type of activity is a nuisance just as ones
related to fouling up the smells, sounds or activities in the
neighborhood.
Number 835
REPRESENTATIVE VEZEY objected for purposes of discussion.
Number 840
REPRESENTATIVE KOHRING stated that he didn't have any particular
opposition to this amendment.
CHAIRMAN PORTER spoke against the amendment, especially to the idea
that this would provide an avenue for getting rid of crack houses.
He stated that there are provisions for this type of thing and it
has been enhanced recently by the legislature. About the slag
business. If they put an investment on their property and meet all
the required permitting, one of the ways they are additionally
harassed is for them to receive and deal with nuisance suits. With
this in mind he didn't feel as though he could support this
amendment.
REPRESENTATIVE VEZEY stated that if it's in the public's interest
to eliminate any sort of nuisance by requiring the taking of
someone's property, he felt as though the public should be willing
to compensate the owner for the loss.
REPRESENTATIVE FINKELSTEIN offered that this amendment doesn't
affect whether a nuisance suit will be filed or what the outcome of
the suit will be. The point Representative Vezey makes is in
regards to the existing concept of a nuisance suit. He has never
heard of anyone who's been found to be a nuisance and then gets
compensated even under existing law. If someone is found to be a
nuisance they shouldn't be receiving compensation for this
nuisance.
CHAIRMAN PORTER asked if there were any other discussion regarding
this amendment and then asked for a roll call vote.
Representatives Green, Vezey, Toohey, Bunde and Porter voted no.
Representative Finkelstein voted yes. Amendment number two failed.
Number 1007
REPRESENTATIVE VEZEY made a motion to move CSHB 154 for the House
Judiciary Committee with individual recommendations and attached
fiscal note.
REPRESENTATIVE FINKELSTEIN objected. To restate his concerns, he
pointed out that there was a lot of discussion during the previous
hearing. He felt as though the sponsor has made a serious effort
to reduce some of the concerns by various parties. Some concerns
still exist, but in a slightly smaller arena. Although he
appreciated the efforts taken he still felt as though this
legislation wouldn't be in the public interest. He felt as though
this blanket approach to every law, circumstance and resource is so
far reaching they have no idea of what the impacts fiscally would
be and no idea what the effect would be on the common good.
Number 1115
CHAIRMAN PORTER requested a roll call vote. Representatives Vezey,
Toohey, Bunde, Green and Porter voted yes. Representative
Finkelstein voted no. CSHB 154 was moved from the House Judiciary
Committee as noted. Chairman Porter asked the sponsor in light of
the amendments to provide new fiscal notes for presentation to the
finance committee.
SB 289 - MINORS, ESP. RUNAWAYS, & THEIR FAMILIES
Number 1184
ALLISON GORDON, Legislative Assistant, Senator Steve Frank
testified on SB 289. She read the sponsor statement into the
record.
"This legislation was introduced to address the growing concern
among parents for the safety of their runaway children. The
runaway epidemic is a significant problem in our communities that
needs serious consideration.
"SB 289 will strengthen the language within AS 11.51.130 regarding
contributing to the delinquency of a minor. By discouraging people
from harboring runaways, it will compel these children to take
advantage of available services that are necessary for assessing
the individual's situation and beginning the process of
reconciliation with the child's family.
"This legislation will also make clear that a police officer's
first course of action, after picking up a runaway, will be to take
that child back to his or her parents unless the officer believes
that there has been abuse to the minor. If that parent will not
accept the child, then the second course of action will be to take
the minor to a safe place agreed to by the parent. If this cannot
be accomplished either, then the police officer must take the child
to a semi-secure shelter for assessment of the child's situation
and determination of the course of action that is in the best
interest of the child.
"SB 289 creates a second tier of consequences for those runaways
who run from semi-secure shelters after they have been placed there
by law enforcement and instructed to remain in that facility. This
bill makes it a violation to run from a semi-secure placement,
thereby giving discretion to law enforcement officials to pick up
the minor and detain him or her in a secure environment pending a
detention hearing within 48 hours under AS 47.10.140. If there are
no other reasons for detaining the minor, such as a delinquency
petition based on violating other laws, the minor would be released
to the legal custodian at the detention hearing. If the judge
finds probable cause to determine that the minor is a child in need
of aid it should proceed under AS 47.10.142 (e).
'I feel this legislation is an important step in dealing with this
continuing problem and I would appreciate your support."
Number 1350
L. DIANE WORLEY, Director, Division of Family & Youth Services,
Department of Health & Social Services testified on SB 289. She
stated that the department is certainly concerned with the issue of
runaways. They also recognize that this is a serious problem and
they deal with these types of issues every day within the work that
they do. The department did strongly support the Senate Judiciary
version of this legislation. At this point with the current
version they do have some concerns.
MS. WORLEY stated that they strongly support the sections which
increase penalties for those adults who harbor runaways. Many of
the problems which they have with youth leaving the runaway
facilities is because these youths have some place to go other than
the facilities which are available to them. The department felt as
if they could strengthen these laws and eliminate the ability for
these kids to stay with these adults who in many cases are not
always the most healthy role models for these children, they will
go a long way to having kids remain in the runaway facilities which
currently exist.
MS. WORLEY noted the department does not have a problem with semi-
secure facilities. Semi-secure means that there would be a system
set up so that if a child left a runaway facility the staff would
know this immediately and make contact with the parents, the
department or law enforcement. They are concerned with a provision
in this legislation which allows runaways to be detained in a lock
up facility. Currently in the state there are no secure facilities
for runaways other than the ones run by the state, which there are
five of these run by the division. These facilities are for
delinquent youth who have committed some type of offense which has
made them delinquent and gotten them into the system to be detained
in either detention or a treatment facility. These facilities are
at maximum capacity and in most cases are at over capacity. She
cited an example of this.
MS. WORLEY stated that when keeping this in mind they are going to
have to first of all development regulations on how to run these
facilities. They would then have to have money available to grant
dollars to make these facilities available, go through a Request
for Proposal (RFP) process for granting and monitoring. This is a
time consuming process. They have concern that if this bill went
into effect and these facilities outside the state's jurisdiction
are not available, then they would be forced to be housed in the
state facilities which are already full.
MR. WORLEY stated if these runaway children were housed in these
state facilities, they would be housed in the same facilities to
mingle with the detention population consisting of experienced
street kids who have committed various crimes such as, assault,
armed robbery, rape, etc. She also noted that there was a
revolving door system with runaways where they go to these shelters
and they go right back out the other side. This legislation would
just slow this process down. A detention in many cases is only
going to be up to 48 hours and these children are released back to
their parents and it is still up to the parent to retain their
child at home. Many of these children are not going to stay home.
MS. WORLEY offered that the department is still concerned that
there will still be a revolving door system, it will just be a more
expensive and more elaborate one. One of her concerns particularly
is that they are going to set up the impression that this bill will
solve the problem and the reality is that the runaway problem is
always going to exist. The problem of runaways will never be
eliminated.
MS. WORLEY brought up another concern and that was the on-going
debate as to whether detaining kids deter them from running away.
The department's fear is that there will be a handful of kids that
this will deter, but this will be the handful of kids who have run
away once, tested their limits and then gone back home. The other
kids might stop using the facilities currently available and go
further underground. Instead of avoiding running away, they will
avoid getting caught, which will potentially put them in a more
dangerous situation.
MS. WORLEY presented their final concern which has been discussed
in depth. The department currently receives federal dollars from
the Office of Juvenile Justice and Delinquency Prevention (OJJDP),
which is around $700,000. She admitted that this wasn't a hugh
amount of money, but by enacting this legislation the state will
loose this money. Personally, it's not so much the dollars as the
programs which are served by these dollars. This money funds over
30 local programs, in Fairbanks, Anchorage, Nome, etc. All of
these programs are helping these kids they are trying to work with.
If they eliminate these funds and programs then they have less
resources to begin dealing with the problem with why kids are
running away. She stated that the department would continue
supporting this legislation in it's Senate Judiciary form. The
department cannot support the lock up concept of the newest version
and she responded to Chairman Porter's question that yes, this was
the primary difference between that version and this present one.
Number 1815
REPRESENTATIVE FINKELSTEIN asked if it was this provision which
would lead to the loss of federal funds.
MS. WORLEY stated that yes, this would be correct. The OJJDP funds
are available to the state, but one of the conditions is that they
cannot lock up (indisc.) offenses.
Number 1886
BRUCE RUBLE testified by teleconference from Fairbanks on SB 289.
Mr. Ruble stated that he was a student at West Valley with a 3.0
average, he also works and he's a runaway. He stated that this law
won't do anything because people like him will hide more and they
will try to be prevent being caught. He said he would not
voluntarily join a semi-secure facility. Mr. Ruble ran away from
an abusive family and said he would not go back. If this meant
having to keep running away, he said he would.
REPRESENTATIVE TOOHEY asked if he had reported the abuse mentioned
to the authorities.
MR. RUBLE said he reported it to the Division of Youth and Family
Services (DYFS) and the police. They basically said there was
nothing they could do.
REPRESENTATIVE TOOHEY suggested he report it again.
Number 1983
REPRESENTATIVE BUNDE said that if either of these agencies did
respond, maybe their definition of abuse may not have been the same
as Mr. Ruble's, but he stated that Mr. Ruble was obviously going to
school which would make him more visible to these agencies.
Representative Bunde asked if he had a choice between running away
and going to jail, which would he choose.
MR. RUBLE said he would run away.
REPRESENTATIVE BUNDE stated that if this bill passes then Mr. Ruble
would go to a lock up.
REPRESENTATIVE FINKELSTEIN said that Mr. Ruble would just make sure
he wouldn't get caught.
MR. RUBLE agreed.
REPRESENTATIVE BUNDE said there are a lot of people in jail who
thought the same thing.
Number 2046
SAM HAYWOOD testified by teleconference from Anchorage on SB 289.
He stated that he was somewhat active in state politics. He and
his wife run a small Christian school. He said that he was mainly
testifying as a parent with a runaway son. Mr. Haywood appreciated
the strong language in the bill concerning reunification of
families. He echoed some of the same concerns that Ms. Worley had.
Mr. Haywood's son was at McLaughlin Youth Center and became more
street wise and alienated once he came out. In regards to semi-
secure facilities, he didn't know of one. Mr. Haywood's son walked
away from quite a few places.
MR. HAYWOOD said that facilities such as McLaughlin were bad places
for these types of kids. They don't belong there. He also
mentioned the overcrowding in these facilities and noted that the
"slap on the wrist" mentality of placing them back in the home when
these children don't get any re-direction or change in their
purpose. This is something they need to address. If there was a
good semi-secure facility to prevent this that would be a good
thing. Secondly, as the legislature looks at this problem the idea
of money comes to light. He suggested that the legislature look at
the options of private industry to operate these types of
facilities.
Number 2320
AL NEAR testified by teleconference from Fairbanks on SB 289. Mr.
Near said he completely supported this bill and he urged that they
pass it out of committee. He said he liked how it upheld the
authority of parents by directing law enforcement to return run
always to their homes. In these instances when a shelter is a
necessary choice, this bill would put to an end to the revolving
door policy. He mentioned the specific situation with his daughter
who was a run away. He was told that run always are a low priority
because they will not stay at youth shelters. Mr. Near stated that
this was true with his daughter.
TAPE 96-55, SIDE A
Number 053
DEIDRE PHAYER, Executive Director, Covenant House Alaska testified
by teleconference from Anchorage on SB 289. She stated that in
it's current form this piece of legislation would put Covenant
House Alaska out of business. The definition of semi-secure is
quite vague and might be in conflict with their philosophy that
voluntary care is the best way to work with kids who are highly at
risk. Alaska asked Covenant House to come here back in 1988 to
work with run away and homeless youth. There was an obvious
respect for their philosophy of voluntary care.
MS. PHAYER continued to note that they have had just under 7,000
admissions to their program since 1988 and 72 percent of those
admissions have been with kids between 13 and 17 years old. These
kids stay at their facility an average of eight days at a time
which gives them adequate time to intervene and work with family
reunification. She believed that the key to their success is that
they are a voluntary program. Kids chose to come in when they need
assistance. By locking kids up they will dissuade them from
disclosing many of the complex issues which lead them to run away
in the first place. These are issues of emotional, sexual and
physical abuse.
MS. PHAYER stated that this will perpetuate the fear and mistrust
that many of these kids have of adults. She added that they do not
certainly want to go out of business. Ms. Phayer felt as though
they were providing a service for this community.
Number 226
CHAIRMAN PORTER noted for Ms. Phayer that while she was testifying
the sponsor's staff gave a head nod that they didn't think she
should be concerned and DYFS said that she should be concerned. He
asked that the sponsor, DYFS and the Department of Law get together
to come up with a solution to this before Friday when they could
look at this issue again.
Number 249
REPRESENTATIVE BUNDE asked Ms. Phayer about the 7,000 young persons
they serve, he wondered how many out of this number were repeats.
MS. PHAYER said that about 51 percent are recidivists. Very often
kids come in, check them out for a night or two, look at staff to
see if they can trust them. Very often they need to come back in
again. Of this 7,000 this represents 3,329 individuals of un-
duplicated use.
Number 291
LORI BACKES testified by teleconference from Fairbanks on SB 289.
In their efforts to make sure run always are not forced to return
to an abusive situation or safe jail, they must not neglect the
young people who run away simply to avoid the responsibilities and
restrictions of family life. It's clear that children run away
from abusive and unsafe homes. They must do everything they can to
protect them. Ms. Backes mentioned her young, run away daughter.
Under the current law she had no support from the Alaska State
Troopers or the Fairbanks city police to protect her daughter.
When her daughter was gone there was no method to bring her home.
MS. BACKES said that no one wants to lock up kids that have been
victimized, but when it comes to run always there are two choices.
They can be taken into custody or they can be let go. This bill
finally allows a safety officer to take these children into
custody, not to prison like a criminal, but into protective custody
where their situation will be evaluated. She doesn't ask the state
to take care of her children for her, but she needs to protect her
children and this must not be interfered with.
Number 490
TOM BEGICH, Chairman, State Student Justice Legislative Committee
and Chairman, National Coalition of Juvenile Justice and
Delinquency Prevention testified by teleconference from Anchorage
on HB 289. The Juvenile Justice Committee has a position paper
which specifically addresses this bill and issue. They were
supportive of the earlier version of this legislation. The mission
paper reinforces the concern of dealing with those who harbor run
always. Secondly, it recognizes that in some instances semi-secure
facilities may be the answer and finally it absolutely opposes
locking children up.
MR. BEGICH stated that if the issue is one of appropriate
consequences to use, this is an issue of law enforcement related to
any kind of misdemeanor, criminal activity which may be taken. He
understood that there have been a number of efforts in Anchorage
and other places to provide specific consequences to any criminal
activity. If it's a question of more parental involvement then
absolutely, the provisions of the earlier version provide this.
Finally, if it's an issue of law enforcement not following the law
or going after those who perpetrate a crime on a fourteen year old
of sexual molestation or sexual statutory rape, then this is an
issue which has to be brought up with law enforcement and does not
come under the purview of this legislation.
MR. BEGICH referred to the cost issue noted by Ms. Worley. The
federal $700,000 which would cease coming to the state. This would
impact over 30 programs which rely on this money and keep 600 to
700 individuals out of the system.
Number 674
LESLIE DRUMHILLER testified by teleconference from Fairbanks on SB
289. She and her husband strongly support SB 289. They are
parents of a 16 year old run away. This legislation is strong and
it needs to be. They are not the only parents who suffer from weak
laws. Too long have their hands been tied. They support the
section dealing with semi-security. Fairbanks run always have a
very strong underground network since they know they are immune
from the law, so they keep running.
Number 789
JUDY SHIFFLER testified by teleconference from Fairbanks on SB 289.
She was gratified to see the inclusion of the authorization of
temporary, secure detention of a minor who has previously left the
semi-secure program without permission. She felt as though this
was the most viable provision in SB 289. Without it the run away
would have no consequence and the revolving door syndrome stays
intact. Ms. Shiffler said she too was concerned about the negative
influences of places like the McLaughlin facility, but there must
be a next consequence after leaving a semi-secure facility. She
was pleased with the consistent focus of this bill of immediately
informing and consulting with a parent or guardian. She was also
pleased with trying to reunited the family unit through counseling.
Number 898
CANDY CARROLL testified by teleconference from Fairbanks on SB 289.
She stated that Bruce Ruble had been living in her home for the
past two years. As a result she was charged under the law and
summoned to court. The charges were dismissed once they realized
the circumstances. Mr. Ruble continues to go to school, keeps his
grades up and holds down a job. She has several run away children
who live with her and are allowed to do so with the permission of
their parents and that they work for re-unification. All of the
run always which have stayed with her have returned to their homes
and are currently living there, although these children needed a
time out away from their parents. Her philosophy is that the run
away problem is not a problem with teenagers, but with families.
Usually there are family problems which need to be dealt with as a
whole.
MS. CARROLL said she didn't believe in locking up children. She
didn't have a problem with semi-secure facilities. One of the
things which could help these situations, if the bill was extended
to allow for these matters to be entered into civil trial and if
the judge was given the authority to mandate that there be family
counseling. The run always are used as scape goats, although this
is a family problem. Rather than semi-secure facilities, have DYFS
license safe houses for these children where there is neutrality.
Number 1060
ROBIN RANDALL testified by teleconference from Fairbanks on SB 289.
She supports this legislation and feels as though it could remedy
some of the heart breaking stories of run always. There have to be
some concrete consequences to follow, especially to harborers. She
thought it was imperative to notify authorities that harborer are
accountable to the court and that especially the parents are
informed about where their child is. A clause which does concern
her regarding this issue is the use of the words, "reasonable
efforts." She referred to an instance with her teenage son. She
felt as though this legislation would decrease the amounts of run
always and supports its passage.
Number 1184
MS. GORDON, Legislative Assistant to Senator Frank asked to make
one thing clear and that was when discussing the fiscal note from
the DYFS with them and the monies provided in their fiscal note
regarding the secure facilities. What was conveyed to her was the
fact that they didn't want to put these run always in already over-
crowded detention centers. These are not appropriate places for
children who have not committed a crime. DYFS conveyed that they
wanted to use this money as grants for residential treatment
facilities who would upgrade some of their beds to a secure
environment as opposed to a detention center, keeping in mind that
there will have to be some money spent and federal funding might be
lost. This legislation deals with those situations where if
children are not in school, they're not being educated or receiving
the proper care are going to end up being cared for by the state
ultimately by welfare, Department of Corrections, or otherwise.
This bill passed unanimously in the Senate.
Number 1259
CHAIRMAN PORTER stated that they would hold this over until Friday,
and it will be the first business on the agenda. He asked that the
issues regarding the Covenant House be addressed and presented
then.
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 3:05 p.m.
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