04/11/2001 01:07 PM House JUD
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 11, 2001
1:07 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Scott Ogan, Vice Chair (via teleconference)
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Albert Kookesh
COMMITTEE CALENDAR
HOUSE BILL NO. 86
"An Act relating to civil liability for certain false or
improper allegations in a civil pleading or for certain improper
acts relating to a civil action."
- HEARD AND HELD
HOUSE BILL NO. 135
"An Act relating to municipal fees for certain police protection
services."
- MOVED CSHB 135(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 214
"An Act relating to a civil action against a person under 21
years of age who enters premises where alcohol is sold or
consumed."
- MOVED CSHB 214(L&C) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 12
Proposing amendments to the Constitution of the State of Alaska
relating to hunting, trapping, and fishing.
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 67
"An Act requiring proof of motor vehicle insurance in order to
register a motor vehicle; and relating to motor vehicle
liability insurance for taxicabs."
- SCHEDULED BUT NOT HEARD
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 68
"An Act relating to civil liability for transporting an
intoxicated person or for driving an intoxicated person's motor
vehicle; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 86
SHORT TITLE:CIVIL LIABILITY FOR IMPROPER LITIGATION
SPONSOR(S): REPRESENTATIVE(S)MULDER
Jrn-Date Jrn-Page Action
01/22/01 0144 (H) READ THE FIRST TIME -
REFERRALS
01/22/01 0144 (H) JUD, FIN
01/22/01 0144 (H) REFERRED TO JUDICIARY
02/07/01 0269 (H) COSPONSOR(S): ROKEBERG
04/11/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 135
SHORT TITLE:MUNICIPAL FEES: POLICE & FIRE SERVICES
SPONSOR(S): REPRESENTATIVE(S)GUESS
Jrn-Date Jrn-Page Action
02/21/01 0386 (H) READ THE FIRST TIME -
REFERRALS
02/21/01 0386 (H) CRA
03/15/01 (H) CRA AT 8:00 AM CAPITOL 124
03/15/01 (H) Heard & Held
03/15/01 (H) MINUTE(CRA)
03/20/01 (H) CRA AT 8:00 AM CAPITOL 124
03/20/01 (H) Moved CSHB 135(CRA) Out of
Committee
03/20/01 (H) MINUTE(CRA)
03/22/01 0681 (H) CRA RPT CS(CRA) 5DP 1NR
03/22/01 0681 (H) DP: MURKOWSKI, GUESS,
KERTTULA, MORGAN,
03/22/01 0681 (H) MEYER; NR: SCALZI
03/22/01 0681 (H) FN1: ZERO(CED)
03/22/01 0695 (H) JUD REFERRAL ADDED
03/22/01 0695 (H) REFERRED TO JUDICIARY
04/11/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 214
SHORT TITLE:CIVIL ACTION AGAINST MINORS IN BARS
SPONSOR(S): REPRESENTATIVE(S)MEYER
Jrn-Date Jrn-Page Action
03/26/01 0729 (H) READ THE FIRST TIME -
REFERRALS
03/26/01 0729 (H) L&C, JUD
04/03/01 0830 (H) COSPONSOR(S): DYSON
04/10/01 (H) L&C AT 3:00 PM CAPITOL 120
04/10/01 (H) Moved CSHB 214(L&C) Out of
Committee
04/10/01 (H) MINUTE(L&C)
04/11/01 0954 (H) L&C RPT CS(L&C) 6DP
04/11/01 0954 (H) DP: HAYES, MEYER, ROKEBERG,
HALCRO,
04/11/01 0954 (H) CRAWFORD, MURKOWSKI
04/11/01 0954 (H) FN1: ZERO(REV)
04/11/01 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
DALE ANDERSON, Staff
to Representative Eldon Mulder
Alaska State Legislature
Capitol Building, Room 507
Juneau, Alaska 99801
POSITION STATEMENT: Assisted with the presentation of HB 86.
REPRESENTATIVE ELDON MULDER
Alaska State Legislature
Capitol Building, Room 507
Juneau, Alaska 99801
POSITION STATEMENT: Testified as the sponsor of HB 86.
CHARLES E. COLE, Attorney
406 Cushman Street
Fairbanks, Alaska 99701
POSITION STATEMENT: Expressed concerns with, and testified in
opposition to, HB 86.
GERALD BROOKMAN
715 Muir Avenue
Kenai, Alaska 99611
POSITION STATEMENT: Testified in opposition to HB 86 and
suggested an amendment.
WEVLEY W. SHEA, Attorney
329 F Street, Suite 222
Anchorage, Alaska 998501
POSITION STATEMENT: Testified in opposition to HB 86 and
answered questions.
BRUCE BOOKMAN, Attorney
1029 West 3rd
Anchorage, Alaska 99501
POSITION STATEMENT: Testified in opposition to HB 86.
PAM LaBOLLE, President
Alaska State Chamber of Commerce
217 2nd Street, Suite 201
Juneau, Alaska 99801
POSITION STATEMENT: Testified in support of HB 86 and answered
questions.
STEPHEN CONN, Executive Director
Alaska Public Interest Research Group (AkPIRG)
PO Box 101093
Anchorage, Alaska 99503
POSITION STATEMENT: Testified in opposition to HB 86 and
suggested that instead, the Alaska Judicial Council could review
the effectiveness of Civil Rule 11.
JOHN SUDDOCH, Attorney
500 L Street, Suite 300
Anchorage, Alaska 99501
POSITION STATEMENT: Testified in opposition to HB 86.
ALLAN E. TESCHE, Member
Anchorage Assembly
1032 G Street
Anchorage, Alaska 99501
POSITION STATEMENT: Expressed concerns regarding HB 86;
testified in support of HB 135 and answered questions.
REPRESENTATIVE GRETCHEN GUESS
Alaska State Legislature
Capitol Building, Room 112
Juneau, Alaska 99801
POSITION STATEMENT: Testified as the sponsor of HB 135.
MARK MEW, Deputy Chief
Anchorage Police Department
4501 South Bragaw
Anchorage, Alaska 99507
POSITION STATEMENT: Testified in support of HB 135.
LAUREE HUGONIN, Director
Alaska Network on Domestic Violence and Sexual Assault (ANDVSA)
130 Seward Street, Room 209
Juneau, Alaska 99801
POSITION STATEMENT: Expressed concerns with HB 135.
ACTION NARRATIVE
TAPE 01-62, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:07 p.m. Representatives
Rokeberg, Ogan (via teleconference), Coghill, Meyer, and
Berkowitz were present at the call to order. Representative
James arrived as the meeting was in progress.
HB 86 - CIVIL LIABILITY FOR IMPROPER LITIGATION
Number 0157
CHAIR ROKEBERG announced that the first order of business would
be HOUSE BILL NO. 86, "An Act relating to civil liability for
certain false or improper allegations in a civil pleading or for
certain improper acts relating to a civil action."
Number 0211
DALE ANDERSON, Staff to Representative Eldon Mulder, Alaska
State Legislature, assisted with the presentation of HB 86. He
explained that HB 86 has been effectively characterized by its
long-established title as the "frivolous lawsuit prevention
act"; it will prevent frivolous lawsuits by requiring parties to
a lawsuit, and their attorneys, to be truthful and responsible
in their pleadings. This bill discourages false statements and
claims in litigation, and encourages responsibility by all
parties and their attorneys. It requires more careful and
focused preparation of pleadings. This bill creates, in
statute, an obligation for litigants and attorneys to make
reasonable efforts to ensure those claims have a reasonable
basis in fact and are valid under existing law. If the claim is
intentionally false, both the attorney and the party can be
assessed damages. Currently, there is no effective way of
holding parties responsible for frivolous pleadings or claims.
Frivolous pleadings and claims increase the costs of litigation
for all the parties involved, in addition to escalating the cost
of our judicial system.
MR. ANDERSON went on to say that HB 86 also provides that if a
party makes an intentional false statement of material fact, the
court shall dismiss the claim to which the false claim relates.
Attorneys, as well as their clients, will be required to
research their claims to ensure they are factually supported
before filing a lawsuit. This bill will eliminate the
"boilerplate" pleadings in lawsuits, and it encourages
responsible and focused pleadings. Boilerplate pleadings
include everything anyone could ever imagine could have
happened, rather than focusing on those specific issues that
actually did occur. [For the reader's benefit, please note that
"boilerplate" is given a different meaning in Black's Law
Dictionary.] Those extraneous pleadings are expensive for
innocent parties to litigate and work through, and are most
often thrown out [of court]. They simply cause one party, and
the court system, to expend significant dollars to pare down to
the real issues [of the case].
Number 0365
MR. ANDERSON also explained that many [lawsuits] are often less
expensive to settle than to litigate, regardless of their
merits. This bill does not affect suits filed in good faith; it
will, however, deter those without merit. A system allowing
deceit to be rewarded, because it is more costly to litigate
than to capitulate, must be changed. This bill assigns
financial liability to those who sign a civil pleading with the
intention of asserting allegations and defenses that are false;
to those who initiate or sign a civil pleading without first
determining that it has a reasonable basis in fact and law; and
to those who continue a claim or defense after determining the
claim or defense does not have a reasonable basis in fact and
law. He concluded by saying that the basic purpose of HB 86 is
to preclude bad-faith litigation by providing meaningful
sanctions likely to be enforced, if such conduct occurs, and at
the same time to provide effective remedies to parties who are
injured by such conduct. Those who are trying to tell the truth
will have nothing to fear from this provision, since it would
only apply if the trier of fact finds that a party has made an
intentional false statement of material fact.
REPRESENTATIVE BERKOWITZ said he recalled, as part of the tort
reform debate, that there were some strong statements against
punitive damages, and yet, he pointed out, one of the core
values of HB 86 is a punitive motive to deter others from
similar conduct. He asked how this fits in with tort reform's
theme of avoiding punitive damages.
Number 0553
REPRESENTATIVE ELDON MULDER, Alaska State Legislature, sponsor
of HB 86, responded by mentioning that someone has said, "I
don't mind punishing lawyers, especially those that don't
represent the truth."
REPRESENTATIVE BERKOWITZ noted that as part of tort reform,
there were some settlement statistics that were supposed to be
gathered. He asked whether Representative Mulder had a chance
to review those statistics prior to creating HB 86.
REPRESENTATIVE MULDER replied that he had not.
REPRESENTATIVE BERKOWITZ asked whether anyone has any idea how
pervasive the problem [of frivolous lawsuits] is.
REPRESENTATIVE MULDER said he is not sure that the statistics
referred to necessarily applied to HB 86. He suggested that
tort reform is substantially a different issue from the one
addressed by HB 86. He explained that his intentions are
threefold. First, he wants to provide an additional level of
comfort and confidence to the public so that people feel that
they can go to court and have a fair hearing; he said he thinks
it is an intimidating situation and that people don't currently
feel that there is a "level playing field." Second, he said, he
wants to diminish the opportunity for frivolous lawsuits and
make it possible for folks who are truly innocent to stand up
and declare their innocence. And his third goal, he said, is to
enable individuals who are innocent to defend themselves and to
have the opportunity to "be made whole." He suggested that
currently if an individual defends himself/herself in court,
that person cannot be made whole, notwithstanding attorneys'
claims that there is opportunity to be made whole. The reality
is, he added, if a person defends himself/herself rigorously
under the law today, it costs a lot of money, and the chances
are that the person cannot be made whole through this process.
REPRESENTATIVE BERKOWITZ asked whether Representative Mulder had
given any thought to Civil Rule 11 [of the Alaska Rules of Civil
Procedure], which read in part:
The signature of an attorney or party constitutes a
certificate by the signer that the signer has read the
pleading, motion, or other paper; that to the best of
the signer's knowledge, information, and belief formed
after reasonable inquiry it is well grounded in fact
and is warranted by existing law or a good faith
argument for the extension, modification, or reversal
of existing law, and that it is not interposed for any
improper purpose, such as to harass or to cause
unnecessary delay or needless expense in the cost of
litigation.
REPRESENTATIVE BERKOWITZ asked whether Representative Mulder
wasn't already, in essence, trying to put suspenders on a well-
belted pair of pants.
REPRESENTATIVE MULDER opined that experience has shown that
Civil Rule 11 has not been effective in deterring abuses. There
has been considerable confusion as to, one, the circumstances
that should trigger striking a pleading or motion, or taking
disciplinary action; two, the standard of conduct expected of
attorneys who sign pleadings and motions; and, three, the range
of available and appropriate sanctions. Consequently [Civil
Rule 11] has not been an effective tool, and he suggested that
statistics will show that [Civil Rule 11] is very seldom used.
Number 0800
REPRESENTATIVE BERKOWITZ indicated that this, too, is his point:
the legislature would be passing a fairly substantial piece of
legislation that's going to impact litigation, and yet there has
been no evidence that it's needed, other than from anecdotes.
REPRESENTATIVE MULDER offered that if there is no problem, then
attorneys should not have any objections to being statutorily
held to the standard that they are expected to not lie in court.
REPRESENTATIVE BERKOWITZ countered that this is already the
expectation.
CHAIR ROKEBERG asked what Representative Berkowitz's knowledge
is regarding the enforcement of [Civil Rule 11].
REPRESENTATIVE BERKOWITZ, after noting that he is not a civil
attorney, said that to his knowledge, it is rarely used because
most attorneys understand that their professional reputation [is
dependent on not lying in court]. He added, "It's the same as
in this body: you can only get away with stretching the truth
so many times and then your professional life is over, and most
attorneys are well aware of that, as with any profession."
Further, he stated that there are existing sanctions for
deliberately abusing the process. He added that he thinks this
modification of the process works a lot of mischief.
Number 0891
CHARLES E. COLE, Attorney, said that he had testified four years
ago in opposition to a bill similar to HB 86, and wanted to
include reference to that testimony as part of the record today.
He said that during his prior testimony, he had spoken primarily
about the effect of Civil Rule 11, and about the federal
experience with the amendment of Civil Rule 11, which was
designed to toughen up the standards imposed upon attorneys and
the signing of pleadings and other documents. He had explained
that the "toughening up" of Civil Rule 11 by that prior
legislation caused trouble in the federal courts; it got to
where "the tail was wagging the dog," and there was so much
litigation over Civil Rule 11, as part and parcel of civil
litigation, that "they" finally had to "junk" the standards and
return to the "federal Rule 11." Mr. Cole, although he is
former attorney general for the State of Alaska, noted that he
is testifying today on behalf of himself, and his goal is to
tell the committee about his experience in the practice of civil
law, which goes back to when he started practicing civil law in
the territorial courts in Alaska in 1954. He added that most of
his experience is related to commercial litigation.
MR. COLE said that he has talked to lawyers throughout the
state, and they have not told him that there is a problem
regarding [frivolous lawsuits]; by and large, the system works
reasonably well, he added. Not only has he not heard complaints
on this issue from lawyers, but he has not heard any complaints
from judges in the state either. He opined that if the judicial
system were experiencing a problem of specious pleadings,
claims, or defenses, he would have heard about it.
MR. COLE offered the following example as a practical
illustration of what he envisions would occur should HB 86 pass:
Take an airplane accident on the North Slope - air
taxi operator flying across the North Slope, four or
five passengers in the airplane, en route from Barrow,
say, to Prudhoe Bay. The engine starts running a
little rough, pilot says, "Gee, what should I do?"
Rather than land at Prudhoe Bay - the closest place -
he says, "I think I'll try to go back to Barrow where
there is maintenance." So he doesn't go to the
nearest airport, which the rules say you ought to do.
The engine quits on the way back to Barrow - people
badly injured - goes to a lawyer. Lawyer for the
plaintiffs investigates the case thoroughly and says,
"Gee, I'll sue the pilot, I'll sue the air taxi
operator, I'll sue Continental Motors for the engine.
... Took a look at those pistons - evidence of
detonation - so I'll sue the piston manufacturer, and
I'll sue Cessna too."
Number 1140
And he takes a lot of time - maybe six months or so
preparing the case, getting the facts together - files
the complaint, serves Continental ... in Pennsylvania
and serves Cessna in Wichita, serves the air taxi
operator. Cessna sends the complaint to the insurance
company and eventually gets the pleading. The
insurance company calls the lawyer in Fairbanks and
says, "Gee, we've got to file an answer to this
complaint in 20 days - 15 days are up - can you
represent us?" Lawyer says, "Sure, I'll represent
you." "Well, protect us ... we've only got five days
to answer." He says, "OK." He calls up the other
lawyer and says, "Gee, I need a little extension of
time; I just got this complaint, and I have to do
something - answer it. Can't file a default to be
taken."
The plaintiffs lawyer says, "Look, I've been working
on this case a long time, I'm getting personal with my
clients, they're pushing me, I can't give you an
extension of time." But, well, OK, he's a good guy,
so he gives you 15-20 days. So then the lawyer looks
at this bill and he says, "Gee, ... I can't sign that
[pleading] before making reasonable inquiry and
forming a reasonable belief in the existence of the
facts upon which the claim - my defense - is based -
can't deny negligence, can't deny anything was wrong
with the design of the airplane until I make a
reasonable inquiry into the facts."
Well, you know how long it takes to make a reasonable
inquiry into the facts of that airplane accident? Of
the qualifications of the pilot, whether he was
trained? Looking at that piston, and seeing what
happened, and why that engine quit? I mean, you know,
hey, the lawyer says, "You think I'm going to sign
that, and put in an answer? I haven't made any
reasonable inquiry in five days." Just won't do it.
Can't do it. So he's in this position, Cessna's in
[the] position, the insurance company [is] in the
position, and he has to say, "Hey, you know, can't
sign the civil pleading, and if I don't sign the civil
pleading, we'll take ... a default judgment." So, you
know, what happens under this bill?
Number 1297
So he says, "Well, I'll tell you what I'll do, ...
I'll get Cessna to indemnify me .... You think I'm
going to file an answer and get sued for punitive
damages? I haven't made any reasonable inquiry. I
have to take discovery. I have to get the production
to documents about the expert examination and teardown
of that engine." That will take months and years, and
that's [what] litigation and discovery and depositions
is all about - for people to find out what really
happened. That's what we do. ...
This is how it works. So the lawyer gets the
complaint from the insurance company, and he calls the
lawyer and says, "Can you give me a few days to
answer?" The lawyer's a good guy and they work
together all the time, they deal with these problems,
so he says, "Sure." So they file an answer.
Then we have initial discovery under court rules:
everybody has to give each other all the evidence they
have - the photographs, the expert reports - and they
exchange it under the court rules, and it works;
everybody gets a pretty good sense of the case. If
they want some more, well, let's do a little
discovery, so they do discovery. Everybody starts
finding about the case ... what the facts are, which
maybe takes a year to get these expert reports, to
take the depositions of the pilot, of the
manufacturer, and so forth.
And then the people say, "Humph, let's have a
settlement conference. The court maybe will have a
separate conference. If they're good lawyers -
experienced lawyers - they'll sit down and say, "Look,
I've taken a look at this stuff, and I think you have
a liability case, you've got some damage." And they
sit down and they settle these cases. And it works.
And everybody knows when you put in an answer denying
negligence -- who'd put in an answer admitting
negligence when you first get the complaint? Would
you want your lawyer to do that? Say, "Oh, I got sued
for [an] automobile accident, ... and just either
don't answer or admit negligence." Nobody does that.
The insurance companies don't want that to happen.
Number 1432
Now, let me just make the comment about "sign the
civil complaint with the intention of asserting the
allegations that are false." Well, you remember the
Shadow .... We used to say, "You know what evil lurks
in the heart of man? The Shadow knows (and his
girlfriend)." Well, this is open season on each
other's lawyers. ... Each lawyer will ... wind up
suing the other lawyer, and say, "You know, you [were]
false when you signed that negligence complaint." And
I'll say, "You were intentionally making false claims
when you alleged negligence." And pretty soon, you
get these lawyers suing each other for all this
malicious stuff.
And you know who pays? I'll tell you who pays: it's
the clients who pay. The last thing you people want -
the last thing the public wants - in the judicial
system and the resolution of disputes is lawyers suing
lawyers. Lawyers who get it done - lawyers who do the
best job for their clients - are the lawyers who are
low-key, get along with the other lawyers, who are
recognized as professionals, whose word is good, whose
pleadings are good, research is good. We resolve
those cases (not me, but those lawyers); that's why
the system works. And I urge you: don't tinker with
the system. It's working, and it's working well.
REPRESENTATIVE JAMES said that Mr. Cole's testimony almost makes
her point that there is a problem, and she mentioned that
ordinary people are not aware of all the specifics illustrated
by the example. She recounted that she has had the experience
of having a lawyer and a defendant lie about her, and her only
recourse was to sign an affidavit that said the claim wasn't
true. She added that neither she nor the other party had any
evidence either way; thus either side could have prevailed,
which, she said, she didn't think was fair. She posited that
the other party knew full well that they were making up a story.
"What kind of a defense do I have in that case?" she asked.
Number 1563
MR. COLE offered that the defense in such a situation is that
"the system works." He said he has found, over the years, that
juries do a good job; they get it about right. Once in a while,
he acknowledged, it goes wrong; the system's not perfect, but
the system really works. The juries get it right and the judges
do a good job, and sometimes there are bad results, but the case
gets to the supreme court and it corrects the egregious errors.
He said he can't say that the system is perfect, but he opined
that it is a great system.
REPRESENTATIVE JAMES, expressing her belief that in her
particular case, the claim was contrived to make the opposing
party's case, asked whether Mr. Cole condones that type of
behavior.
MR. COLE said, "Of course not." He then added that his
experience has been that so often it's not just all on one side.
It's the plaintiff claiming the defendant is a liar, and the
defendant claiming the plaintiff is a liar. He said he hears
all the time, "They lied." The solution, he posited, is to let
the system work its magic.
REPRESENTATIVE JAMES offered that although the system is the
best we have, it has room for improvement.
Number 1647
CHAIR ROKEBERG called an at-ease from 1:35 p.m. to 1:36 p.m.,
during which time he turned the gavel over to Representative
James.
REPRESENTATIVE BERKOWITZ noted that Mr. Cole's hypothetical
example puts the defendants at a huge disadvantage if HB 86 were
to pass, because the defendants wouldn't have the time to do the
investigation necessary. And although he acknowledged that a
lot of small businesses had sent in testimony in favor of HB 86,
he said it would seem to him to be counterintuitive for them;
they'd be in a bad position.
MR. COLE affirmed that from his perspective, HB 86 gives a great
advantage to the plaintiff because before the complaint has been
filed, the plaintiff has had the advantage of having, in some
ways, almost an infinite period of time (aside from the statute
of limitations) in which to prepare the case. Then the summons
is served, and the answer has to be filed within 20 days. In
the face of HB 86, he opined, the defense lawyer would be unable
to sign an [answer] because he/she knows nothing about the case;
there has been no opportunity to investigate.
MR. COLE commented that this is just an example of the problem
with HB 86 in a personal injury case, and he suggested the
committee consider a case wherein a subcontractor sues a general
contractor for canceling the contract for nonperformance. He
offered that no default could be alleged in such a case until
the site is examined, and he added that this can sometimes
involve reading 5,000 pages of daily reports, and it may take
two years before getting a good sense of what happened on the
job. He opined that no lawyer who is concerned about legal
liability is going to file an appropriate answer in those
circumstances in the face of HB 86. In such a situation
involving contractors and subcontractors, the timelines are not
sufficient; this sort of system won't work, he predicted. He
added that the insurance companies and the defendants who are
small-business owners will be the people who are going to "pay
the piper" if HB 86 passes, not the plaintiff's lawyer.
REPRESENTATIVE BERKOWITZ said, "We know that there's bad apples
out there. What happens to those bad apples?" What can be done
under existing statute and existing court rules to people who
are perpetrating frauds on the court and doing things that "we"
don't like, such as telling lies, he asked.
MR. COLE responded that there is [Civil Rule 11]. He then posed
the question, "Does it work effectively?" And he answered that
in his view, it works pretty well. He suggested that letting
the system work is the only viable solution to "the bad apple."
He remarked that he has seen insurance-defense answers that have
12 affirmative defenses, and that he is exasperated [by]
"'Failure to state a claim on which relief can be granted,' when
you follow the official form for notice pleading that's right in
the federal rules." He added, "It takes me time to cut it out,
so ... I just ignore it and say, 'Oh well, that'll go away' - as
it really does." He again advocated for just allowing the
[current] system to work.
Number 1874
REPRESENTATIVE BERKOWITZ argued that it seems to him that there
would be a tort claim against someone who lied and ran up costs,
and that there are possible criminal charges that can [be
filed].
MR. COLE countered that he had a client tell him the other day,
"We should stop this stuff; we should file perjury charges
against this state bureaucrat because he lied about that." Mr.
Cole said he told his client to forget it; it's not going to
happen. He opined that it would be nice to get district
attorneys to prosecute every perjurer for perjury, but he
intimated that it cannot be done.
REPRESENTATIVE BERKOWITZ observed that the charge of perjury is
available.
MR. COLE agreed that the charge is available.
REPRESENTATIVE JAMES again noted that Mr. Cole is simply making
her point [in favor of HB 86]. She referred to Mr. Cole's first
example. She said although it appears that the situation is in
favor of the plaintiffs, the plaintiffs don't know whether the
charges they have made are true, any more than the defense
knows. She surmised, then, that in this example the plaintiffs'
[attorney] would be just as guilty [of specious claims] as the
defense attorney would be in denying them without proper
investigation.
MR. COLE responded that economics take care of these types of
situations. He opined that the plaintiff's lawyers are not
going to spend all the time and money needed to prepare the case
if they do not think they have a good case and will be able to
recover costs. He added that attorneys generally work on a
contingent fee basis, and that they are not served well by
filing specious claims because they lose their time and money.
He offered that insurance companies ought to be tougher and not
settle cases if they don't think the claims are good; insurance
companies shouldn't pay off claimants just to keep from paying
the cost of defense. He posited that this solution would go
further towards stopping frivolous lawsuits than any changes to
statute could accomplish.
REPRESENTATIVE JAMES countered that many defendants are not
insurance companies; they're just small-business people who end
up settling specious claims because they cannot afford the time
and money, or interruption in their lives, to fight the claims.
She opined that this is the purpose behind HB 86 - to stop the
kinds of specious claims that are filed simply in the hopes that
the defendants will not have the time or money to argue the
claims, and will thus settle.
MR. COLE observed that the plaintiff has the burden of that
litigation too - it's not free for them either. He pointed out
that the economics [of the situation] works its magic on both
sides of the fence.
Number 2010
GERALD BROOKMAN testified via teleconference, and noted that he
is not an attorney. The only lawsuit he has ever been a party
to was a small claims action that he brought against another
party who had built a driveway across some property that Mr.
Brookman owned; he prevailed. This statement was by way of
explaining that prior to today, he had never heard of Civil Rule
11. He said that HB 86 might seem reasonable on the face of it,
but when he reads terms in it such as "reasonable inquiry and
forming a reasonable belief", he said it seems to him that the
word "reasonable" is very subjective. He suggested that if HB
86 is going to pass out of committee, then on [page 1, line 10,
and other locations in HB 86] "good faith" should be substituted
for "reasonable". He finalized his comments by saying, "It just
seems to me that this bill doesn't pass the smell test; I think
you ought and take it out to a crossroads and bury it with a
stake through its heart at midnight."
Number 2124
WEVLEY W. SHEA, Attorney, testified via teleconference and noted
that he had spoken in opposition to a similar bill (HB 42) last
year. He mentioned that he had written a detailed letter to
Senator Taylor on this issue last year as well. He indicated
that he agreed with Mr. Cole's comments that the system works
very well as it is. He added that under the [Alaska Rules of
Professional Conduct] Section 3.1 deals with meritorious claims
and contentions, and 3.3 deals with candor towards the court.
He offered that when used by the court, [Civil Rule 11]
sanctions are very effective.
MR. SHEA said that he primarily represents small businesses
owners, and has done extensive public interest litigation
relating to voter fraud. He reiterated his belief that the
current system works very well. He reported that he has not
seen any indication of the problems alluded to by the sponsor of
HB 86. Although there might be occasions when overzealous,
inexperienced counsel make mistakes, overall he did not see
frivolous litigation taking place. He commented that he is
currently working on a case of racial discrimination, and he
opined that the system will work even for this situation, which
he characterized as having bizarre circumstances.
MR. SHEA remarked that HB 86 merely duplicates what is currently
in place, adding that he thinks it will increase litigation. He
suggested that the goal of emphasizing professionalism within
the legal system can be accomplished in a way that is not
compounded by lawyers suing lawyers.
REPRESENTATIVE BERKOWITZ, for clarification, asked whether Mr.
Shea thinks that HB 86 will increase the costs of litigation,
particularly for small businesses.
MR. SHEA affirmed he did think this. He added that although HB
86 might not necessarily give an advantage to the plaintiff's
lawyers, it certainly presents a disadvantage to lawyers who do
insurance defense work. He explained that according to his
knowledge, when experienced, plaintiff's personal-injury lawyers
take cases, they evaluate the cases very thoroughly; he opined
that all HB 86 does is compound the situation.
REPRESENTATIVE BERKOWITZ asked what kind of sanctions could be
imposed on an attorney who violate the [Alaska Rules of
Professional Conduct].
Number 2344
MR. SHEA reported that sanctions can be both publicly and
privately assessed and can consist of fees, suspension, or
disbarment from practice; he noted that word gets out quickly
when someone intentionally misrepresents the facts or is not
straightforward. He added that he has not seen any situations
of fraudulent pleadings or intentional misrepresentations to the
court, even though he has been practicing law in Alaska for well
over 20 years. He remarked that under the current system, the
court addresses any instances of overreaching by counsel, and he
has no problem bringing such instances to the attention of the
court or the Alaska Bar Association.
REPRESENTATIVE JAMES remarked that HB 86 appears to her to be
aimed at the plaintiff and not the defendant. She then asked
Mr. Shea whether he believed that in many situations, plaintiffs
have to manufacture a case in order to initially file and are
assuming that something is a certain way without definite
knowledge.
MR. SHEA said no, he did not think that plaintiffs' attorneys
try to manufacture or create anything. Notwithstanding
Representative James's description of her bad experience, he
explained that when an experienced plaintiff's attorney is
approached for a case, he/she evaluates each case totally, from
both a financial point of view and a factual point of view, and
if a case isn't any good, he/she will say so. In his own
practice, he noted, he only takes about one case out of every
ten potential cases that come to him; these are very complex
cases, sometimes involving civil RICO [Racketeer Influenced and
Corrupt Organizations Act] charges or claims against the State
of Alaska, and he spends hours with each potential client (free
of charge), evaluating the information to determine whether
there is a chance of winning the case.
TAPE 01-62, SIDE B
Number 2480
MR. SHEA mentioned that in the public-interest litigation cases
he was involved in regarding the 1994 election, the State of
Alaska, in its defense, had ten attorneys and four paralegals.
He added that anybody bringing litigation against an insurance
company or other major entity is faced with an uphill battle.
He commented that in order to simply evaluate such cases, he
asks for $30,000 upfront; he said he does not take cases on a
contingency fee basis or pro bono. He reiterated that
experienced plaintiff's lawyers look at cases really hard before
proceeding.
REPRESENTATIVE JAMES, referring to Mr. Cole's first example
regarding the airplane accident, pointed out that the plaintiff,
in expanding the claims to include all the different entities,
had to be simply assuming fault.
MR. SHEA suggested that Representative James misunderstood the
point Mr. Cole was attempting to make with that example. Mr.
Shea offered that Mr. Cole was saying that there is a statute of
limitations of one or two years - whatever is within the
contract - in which the plaintiff's lawyer has to evaluate the
possible causes of the accident from that first overview as best
as he/she can, to determine all the possible litigants, because
once notice is given to the parties, other parties cannot be
brought in later if the statute [of limitations] has run. He
again reiterated that the system works really well as it is, and
that it would be bad to tinker with it.
Number 2309
BRUCE BOOKMAN, Attorney, testified via teleconference. By way
of background, he said he has been in Alaska since 1967 and has
been working for the last 20 as a defense attorney in a large
interstate firm. He stated that he is familiar with attorney
discipline; he served on the [Alaska Commission on Judicial
Conduct (ACJC)] - for four years - and the disciplinary
committee of the [Alaska Bar Association (ABA)], and has
occasionally done plaintiffs' legal malpractice suits and
defended grievances. He added that he is also the president of
the Alaska chapter of the American Board of Trial Advocates,
which is a group of experienced trial lawyers with both defense
lawyer and plaintiff lawyer representation. He announced that
he is very much against HB 86, and that he agrees with the
previous comments to that effect.
MR. BOOKMAN remarked that there are a lot of standards in place
already, as well as remedies for people who are injured in the
judicial system itself. There are the [Alaska Rules of
Professional Conduct], Civil Rule 11, and criminal statutes (it
has always been a felony to commit perjury); hence there is no
need to set further standards of honesty, he opined. He said he
understood the committee's concern that these remedies aren't
often used, but he offered that there are a lot of reasons for
that, and that simply adding more remedies isn't going to change
the fact that the remedies aren't often used. He explained that
one of the reasons the remedies aren't often used is that the
cases are vary rarely "black and white." It's not so easy to
find out who is telling the truth and who isn't, he added.
Number 2240
MR. BOOKMAN recounted that when he was a young public defender,
he was convinced, in every single case he tried, that at least
one of the prosecution witnesses was lying, and usually he
thought it was the police who were lying. He posited that young
prosecuting lawyers probably also think that all defense
witnesses are lying. He explained that this is a common
perception held by young, inexperienced litigators, particularly
when they get committed to the cause of the client. He added,
"And yet, the whole system is set up to sort that out, and, to a
judge, it's not so clear, and to a jury it's not so clear; both
sides think the other side is lying, and that's really what the
whole procedure is aimed at trying to decide."
MR. BOOKMAN reported that he recently served as an arbitrator in
an uninsured motorist claim. The plaintiff was hurt; she
testified that she had whiplash and that she couldn't get up off
the couch all summer long because of that whiplash. The
defendant's lawyer pointed out that the plaintiff had told the
doctor that it hurt when she did any gardening or went dancing.
The plaintiff still claimed that she couldn't get off the couch.
Mr. Bookman said that as an arbitrator (and as primarily a
defense lawyer), he thought that the plaintiff was lying, but
the other two arbitrators did not think that at all; they
thought she was kind of exaggerating and that what she really
meant was that it hurt a lot, and they were quite sympathetic.
"We just differed," he added, and explained that "you" don't
want to have a whole lawsuit turn on this; that's what lawsuits
are about - people have different opinions.
MR. BOOKMAN, to present a further example, said that he once had
a large product-manufacturing case wherein his client testified
that he couldn't recall ever testing a particular product.
However, the other lawyer presented a deposition from this same
client on an unrelated case related to the same product from a
couple of years earlier; the client at that time had stated,
"Gee, I'll never forget the time we tested that product." The
other lawyer then claimed that Mr. Bookman's client had
committed perjury. Mr. Bookman, taking into account that
recollections change as time passes, noted that he could not
tell whether his client had committed perjury since, in this
example, a couple of years had gone by between the two cases; he
added that he did not want the lawsuit to hinge on this
collateral fact. Things are not very clear in lawsuits, he
said, especially the bigger and more complicated ones.
Number 2114
MR. BOOKMAN pointed out that in many of the large cases that he
is familiar with, people in different departments of businesses
have different perceptions about how the company operates - they
remember things differently - and the recollections aren't going
to agree, and it's not going to be clear. "You" don't want to
make a whole lawsuit depend upon whether somebody believes that
somebody else was actually intentionally telling a lie. Some
people who are truly mistaken sound very sure of their
testimony. He remarked that he also questions the materiality
problem. What is going to be a material fact? What if somebody
makes a statement, "Our document retention policy was that we
threw away these documents," and somebody else from the company
says, "Well, we saved our documents, so, I don't think there was
a document retention policy." Is that a material fact, he
asked, if there were documents that would have helped one side
or another?
MR. BOOKMAN said that it is pretty easy to say, "People
shouldn't ... go to court and lie," but it is much more
complicated than that. With regard to the effects of HB 86, he
predicted that defense costs are going to go up, and that
insurance company costs are going to go up, which will tend to
push rates up.
MR. BOOKMAN referred to language in HB 86 that says, "If the
trier of fact determines that a party to a civil action
intentionally made a false statement of a material fact in
connection with the prosecution or defense of a civil action,
the court shall dismiss the claim". He pointed out that the
language does not stipulate when. As soon as possible, somebody
is going to make that charge, and thus he envisions the case
will be dismissed without ever getting to the merits of the
case. He asserted that this will result in two lawsuits taking
place at the same time. And if one of the clients is defended
by an insurance company lawyer, he explained, and the claim is
made that somebody in the defendant's party lied, the insurance
company is not going to want to defend against that claim
because, if true, it would be considered intentional misconduct
and could be a violation of policy; therefore, the client may
find himself/herself without counsel. Mr. Bookman concluded by
observing that adoption of HB 86 will result in "an incredible
mess."
Number 2014
PAM LaBOLLE, President, Alaska State Chamber of Commerce, stated
that her organization is in support of HB 86. She suggested
that HB 86 is not directed at those who make honest errors or at
ethical attorneys, and she acknowledged that most people in the
legal profession are ethical. Rather, HB 86 is directed towards
people who would use the system as a way of clouding an issue;
those who would file a suit with the hope of forcing an out-of-
court settlement from a defendant who cannot afford full
litigation; or those who would intentionally use false
allegations and/or charges to cause people to enter into,
expand, or maintain litigation and incur extra costs. She
opined that if [frivolous lawsuits] are, indeed, not a common
problem, then adopting HB 86 shouldn't increase litigation
costs.
MS. LaBOLLE said that her organization feels that all it takes
is just one person having to spend a great deal of time in court
because someone lied simply to bring that person extra grief,
[to justify adoption of HB 86]. She added that the issue is to
ensure that professional people know that they cannot
intentionally lie. If someone files a frivolous lawsuit to
intentionally cause a loss, and the claims are not true, that
person should be punished.
REPRESENTATIVE JAMES asked if Ms. LaBolle had any specific
examples to illustrate her points.
MS. LaBOLLE replied that she did not; she explained that it is
difficult to find people willing to divulge the circumstances
surrounding a lawsuit because disclosure can sometimes set the
stage for further legal problems. She implied that her
organization supports HB 86 on a philosophical basis; lawyers
who intentionally lie to further their efforts should be
punished, she reiterated.
REPRESENTATIVE BERKOWITZ questioned the fact that even though
Ms. LaBolle did not have any specific examples of frivolous
lawsuits, she is still not comfortable with the current
standards in terms of criminal penalties, professional conduct
rules, and civil penalties, all of which already exist.
MS. LaBOLLE countered by questioning how bad a person's actions
have to get before sanctions are placed on that person. She
observed that there is a tendency to "not air the dirty laundry"
until the actions get so bad that they cannot be ignored.
Number 1740
REPRESENTATIVE BERKOWITZ reported that there was a headline in
one of yesterday's newspapers about attorney discipline. He
then stated that he is very concerned about driving up costs for
small businesses, and he noted that all the testimony heard
today predicts that adoption of HB 86 will do just that - drive
up costs for small businesses.
MS. LaBOLLE responded that it is likely to be the small business
owner or individual who is in court in the first place, merely
because someone brought a false charge, or because an attorney
did not bother to find out the details of the case before
bringing charges. She pointed out that small businesses incur
costs in these situations already, and she added that her
organization does not believe that HB 86 will drive up costs.
REPRESENTATIVE BERKOWITZ asked Ms. LaBolle whether she has
anything to substantiate this belief.
MS. LaBOLLE said she did not, and added that the belief is based
on common sense.
REPRESENTATIVE BERKOWITZ asked, "Common to whom?"
REPRESENTATIVE JAMES suggested common to everybody except
attorneys.
REPRESENTATIVE BERKOWITZ remarked, "Perhaps y'all ought not hire
us, then."
MS. LaBOLLE remarked that her comments were not, in any way,
meant to sound negative or pejorative against the prior
testifiers, most of whom are attorneys.
REPRESENTATIVE JAMES turned the gavel back over to Chair
Rokeberg, who had returned.
Number 1605
STEPHEN CONN, Executive Director, Alaska Public Interest
Research Group (AkPIRG), testified via teleconference and said
that AkPIRG is a consumer advocacy group. He said he could
assure the committee that his client group, which in part
consists of the 1,000-plus membership of the Alaska Alliance of
Injured Workers, perceives the problem to be a lack of access to
the justice system - a lack of available legal representation.
He added that his client group would further perceive HB 86 not
as a frivolous lawsuit prevention Act, but, instead, as a bill
that provides fodder for multiple lawsuits - often frivolous -
and which will flood the court with litigation among attorneys
while would-be clients stand outside of the process, watching.
He remarked that he hopes the fiscal notes reflect the increase
in judges and court bureaucracy that will be devoted exclusively
to an attempt to employ the vague standards encompassed in HB
86. He opined that the proposed remedy is worse than the
problem alluded to by proponents of HB 86.
MR. CONN suggested that if there is a need to examine Civil Rule
11 more closely, then the legislature could simply provide that
the [Alaska Judicial Council] do so, as was done during tort
reform. In this way, any solution could be grounded in reality
rather than in an ideological spat between some representatives
of the chamber of commerce and the legal community. Those of
"us" who are clients with real claims and real needs feel that
they are being denied access to the system, he reiterated. He
stated that HB 86, at worst, would chill due process, and,
further, that it would perhaps discourage attorneys from
representing this class of would-be consumers in the justice
process because of the need to do further investigation to
assure themselves that they are not going to be sued by other
attorneys, or fall into a maze of lawsuits and counter lawsuits.
MR. CONN, in conclusion, said that he certainly sympathizes with
the sponsor of HB 86 and with the concerns of the business
community about frivolous lawsuits. In examining HB 86,
however, more as an academic rather than as a practitioner, and
knowing full well that lack of representation is a pandemic
problem for many consumers with real-life injuries and justice
concerns, he opined that HB 86 does not pass the test. He
encouraged the committee to "vote it down" and seek an
alternative remedy to the perceived problem.
Number 1361
JOHN SUDDOCH, Attorney, testified via teleconference and said he
primarily does "plaintiff work" along with some "defense work."
With regard to the topic of parties' lying, he explained that
the committee should realize that if HB 86 passes, it will make
Alaska a distinct jurisdiction because it will be the only
jurisdiction that has such a law; Alaska will be the only
jurisdiction in the Western world that would choose to turn the
outcome of civil litigation - the search for the truth - into a
search for whether somebody has lied on some particular matter
(large or small), and then say that's "the whole shootin'
match." Everything will turn not on the truth, but on whether
somebody lied, and he offered that this is a sufficiently
radical proposition that it has been adopted nowhere else in the
Western world.
MR. SUDDOCH cautioned the committee that before they adopt a
provision of such breathtaking scope - such a breathtaking
effect on the civil justice system, which is one of the jewels
of Alaska constitutional law - they should really take a hard
look at it. He then pointed out that for so radical a
provision, there is virtually no framework provided as to how
this would work procedurally in the real world. He submitted
the following scenario as typical of how adoption of HB 86 would
influence the process:
A lawsuit will be filed. Now there is a new way to
win this lawsuit. One way, of course, is to be
correct on the facts - to be correct and have a just
case. The other way that has now come about to win
this lawsuit is to show that somebody is lying. So,
as a lawyer, at least half of my focus now has to be
dedicated not on finding the truth, but on finding a
lie. And so what I do as counsel for the plaintiff is
sit down with my plaintiff and I say, "You cannot lie.
... Swear to me you will not lie, I beg of you -
because my financial future is now wrapped up in
yours. I've spent a bunch of dough, and if you lie,
it's all for naught." And so I have to control my one
person.
Number 1147
Perhaps during the deposition of my plaintiff, he says
at one point, "I don't remember." Maybe he says that
five or ten times. That becomes significant. Maybe
later something will show that he ought to have
remembered, and when he says, "I didn't remember,"
somebody could say, "Well, that was a lie." Now we
proceed to depositions of the defendants - say there
[are] three corporations that are defendants.
Whereas, before, I might take one deposition as the
plaintiff's lawyer, now there is an entirely new
strategy for winning: it's finding a lie. So perhaps
rather than taking one deposition of corporate
witnesses, I take ten - ten of each.
Now, ... instead of the three depositions, we've done
thirty, and my goal, of course, is to find somebody in
that corporation who is not very bright, not very
emotionally stable, shoots from the hip, can be
badgered, can be angered, whatever it takes to get
that person out on limb and see if he will commit a
lie. Because, after all, if he commits a lie, he
hands me the lawsuit on a platter - a terrible,
terrible vulnerability for a corporation and insurance
company. How on earth could they control whether or
not one particular executive goes around the bend and
tells a lie in a deposition? And, of course, all
might turn on that; millions of dollars might change
hands on the circumstance of one executive having a
bad day and telling untruths.
Then we proceed to trial. Suppose that the parties
have each said, "We identified 25 lies, each, in the
depositions, and we want those to go to the jury."
Well, the jury is the finder of fact. And then, say,
during the trial, 25 different times somebody pops up
and says, "Your Honor, that's a falsehood. I want
that to go to the jury." So at the end of the case,
there is final argument. Half the final argument is
dedicated to who was lying and who was telling the
truth on various points because every one of these
allegations of lying is a potential landmine which
decides the case.
Number 1010
And then the case goes to the jury, and the jury
instructions are ten pounds because the jury has to
decide 50 different times whether somebody was telling
the truth or was telling lie, and each of those could
decide the case. Now, what is a lie as far as the
jury is instructed? The jury is instructed, "You look
at each of those allegations of lying, and if you find
that it is just a tiny bit more probable that the
assertion is not true - if it's a 51-to-49 likelihood
that it's not true - then you must find that it was a
lie," and the lawsuit will be over. And, of course,
we don't know what happens if the jury finds that both
sides have been lying; maybe they cancel out, or maybe
if one side lies three and the other side lies two,
... on and on.
So the jury decides the case, ultimately, if any of
those 50 allegations of lying are found by three-
fourths of the jury (we don't have a unanimous
verdict, of course, in Alaska) to be 51-to-49 more
probably a lie, the lawsuit is over. And then what
happens? What is the insurance company [to] say to
the corporation? The insurance company says, "We
don't cover you .... You lost this lawsuit because of
your intentional conduct; we don't cover you for that.
You're uninsured; for that you're on your own." And
the plaintiff says, "Oh, no, what do you mean, you're
uninsured? We want you to be insured." And, so,
there is a whole [other] series of insurance
litigation that starts.
And, of course, there's the constitutional litigation
that ensues because part of this is obviously
unconstitutional. How can you take from the plaintiff
or a defendant vast sums of money in penalty for what
might be, in the end, a very minor, scarcely material
lie? We have the United States Supreme Court saying
under [the] punitive damages context, "You can't
punish a corporation $50 million for a barely minor
incident; that's a violation of due process." Well,
how can [you] punish a corporation $50 million for a
minor lie by one of its executives? Or how can you
take away from a catastrophically, maybe, paralyzed
plaintiff? How can you take away his $10 million
claim because he lied about whether he smoked
marijuana or something like that? The Supreme Court
would have to say that's a violation of due process;
the penalty is so capricious and unrelated to the
offense.
Number 0851
MR. SUDDOCH, in conclusion, implored the committee to realize
that HB 86 is not simply addressing "a minor mom-and-apple-pie"
issue here. He stated, "This is the big one. And before you go
down this road, I would suggest you listen to a vast range of
people who know what they're talking about."
REPRESENTATIVE JAMES remarked that she has listened to a lot of
testimony, and that "they're" missing part of HB 86 [page 2,
lines 7-13]:
(b) If the trier of fact determines that a party to a
civil action intentionally made a false statement of a
material fact in connection with the prosecution or
defense of a civil action, the court shall dismiss the
claim or defense to which the false statement relates.
If the civil action involves multiple claims or
defenses and the false statement does not apply to all
claims or defenses, the dismissal required under this
subsection shall apply only to those claims or
defenses to which the false statement directly
relates.
REPRESENTATIVE JAMES said that the last testifier had examples
that did not relate to this at all; she added, "He said it was
going to be kicked out if there is any lie told, and that's not
true in this bill."
REPRESENTATIVE BERKOWITZ said, "I take issue with that; I
believe Mr. Suddoch went on at great length about how the trier
of fact - that is the jury - would have to sit in a room and
say, 'How many people told a lie, and which lies are worth more,
what if both sides are lying?'" He offered that this testimony
did discuss [subsection] (b), and that [subsection] (b) is, in
fact, part of the problem.
Number 0717
ALLAN E. TESCHE, Member, Anchorage Assembly, testified via
teleconference and noted that his comments regarding HB 86 are
on behalf of himself as a lawyer, not on behalf of any other
entity, and that he has been a lawyer in Alaska for about 25
years. He remarked that the operative word on [page 1] line 6
appears to be "person"; he said that he did not know whether
that includes people other than attorneys. The testimony thus
far, he commented, seems to be directed at attorneys, and is
presented by attorneys. He offered that "person" would also
apply to "laypersons" who file and pursue litigation on their
own, and he posited that this raises a number of questions. He
acknowledged that there is a fairly sophisticated process for
attorney discipline and supervision through the bar for knowing
misrepresentation, and yet, in many respects there is very
little that prevents or deters misrepresentation or lying on the
part of pro se litigants. He suggested that this is a
distinction that should be considered.
MR. TESCHE expressed concern that HB 86 could be turned into a
terrible weapon against people who exercise their right to
access the court for redress, and he suggested that great
caution is warranted. He noted that in his 25 years of
experience as an attorney, he can only think of one possible
instance in which another attorney has done something that might
come within the purview of HB 86; but even that instance, he
added, would require a couple of weeks of litigation to sort
out. With respect to pro se litigants, he offered, there is the
potential for more problems. He acknowledged, however, that on
balance, he agrees with what others have stated: there does not
appear to be a problem that is so serious that it warrants this
kind of treatment.
MR. TESCHE, in conclusion, commented that it may feel good to
pass this kind of [legislation], and the legislature can then
tell constituents, "By golly, we're working hard for you to make
sure that we crack down on those lawyers, and we've cracked down
on the lying in the judicial system." However, HB 86 doesn't do
it in a way that would be effective. If legislators really feel
that there is a problem that needs to be solved, he added, it
could be handled much more narrowly by taking a look at Civil
Rule 82. If the idea in Alaska is to deter litigation and at
the same time make prevailing parties whole, legislators might
want to look at appropriate ways of increasing recoveries under
Civil Rule 82, so that the prevailing party - after a fair trial
based on the merits of the case - could be reimbursed and be
made whole. He opined that this would be a better solution to
the problem - assuming that there really is a problem - rather
than adopting HB 86.
CHAIR ROKEBERG commented that he recognizes that there are
substantial difficulties with HB 86, and he offered that the
committee might want to take a different approach. [HB 86 was
held over.]
HB 135 - MUNICIPAL FEES: POLICE & FIRE SERVICES
Number 0264
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 135, "An Act relating to municipal fees for
certain police protection services." [Before the committee was
CSHB 135(CRA).]
Number 0200
REPRESENTATIVE MEYER made a motion to adopt the proposed
committee substitute (CS) for HB 135, version 22-LS0421\P, Cook,
4/11/01, as a work draft. There being no objection, Version P
was before the committee.
Number 0137
REPRESENTATIVE GRETCHEN GUESS, Alaska State Legislature,
testified as the sponsor of HB 135. She explained that HB 135
allows municipalities that so choose to charge residential
owners for excessive use of police visits with some
qualifications. She pointed out that the definition of
excessive use and the amount of the fee are left to the
municipality to determine. Representative Guess said, "My goal
is to make this tool available to municipalities and not to
burden them with any state mandates or too many sideboards for
them to do their job." However, there are two exceptions, for
domestic violence and potential stalking. In such instances,
[she said she] doesn't want to charge those people or discourage
them from calling. This bill is aimed at residential owners and
landlords who aren't responsible for the tenants or themselves
when there is a nuisance in a neighborhood. Furthermore, she
explained that HB 135 specifies that the ordinance would require
actual notice to a property owner in order to ensure that the
property owner would know that there would be a fee if
corrective action isn't taken.
TAPE 01-63, SIDE A
Number 0001
REPRESENTATIVE GUESS noted that the bankers had some problems
with a previous version of HB 135. The language in question has
been cleaned up and thus the bankers now support the bill.
Representative Guess reiterated that the purpose of HB 135 is to
provide municipalities with one more tool to hold people
accountable for their actions. She mentioned that the Anchorage
Police Department, the Fairbanks Police Department, and the
cities of Anchorage and Fairbanks are in support of HB 135.
Number 0090
REPRESENTATIVE JAMES remarked that one of the things she likes
about HB 135 is that the police would have to notify the
landlord of visits to his/her property. Often, the landlord
doesn't know of such police visits and would probably appreciate
that knowledge. Representative James related her belief that
the Landlord Tenant Act didn't include the ability to evict a
person receiving excessive amounts of police visits. Therefore,
she said she thinks that this bill could "reach over there" if
the sponsor so desired. She noted her desire to place an
emphasis on that in HB 135; she asked if Representative Guess
would object.
REPRESENTATIVE GUESS replied no. She mentioned that she is
currently having an amendment to the Alaska Landlord Tenant
[Act] drafted to have that corrective action taken if this bill
passes. She offered to ask Tam Cook, Director, Legal and
Research Services, if such would be allowed under the title of
HB 135. She noted that she had planned to have the corrective
action encompassed in another bill.
CHAIR ROKEBERG remarked that it would probably be better if this
concept could be incorporated under the current title of HB 135
because another piece of legislation could be avoided.
Number 0250
REPRESENTATIVE OGAN posed a situation in which neighbors don't
like each other and one neighbor calls the police, which results
in the neighbor's receiving a fine. In such a situation, there
could be a due process problem because of the person receiving a
fine without ever really committing a crime. He noted his
assumption that this is a civil fee. Representative Ogan
expressed concern with the ability of people to harass their
neighbors if they don't like them.
REPRESENTATIVE GUESS pointed out that HB 135 addresses excessive
calls and she reiterated that the municipality would define
"excessive". Furthermore, she expressed her attempt to keep as
much of the control as possible at the local level in order that
the local authorities can take into consideration the local
situation and false reporting. Therefore, it is left to local
municipalities to address.
REPRESENTATIVE OGAN remarked that he would feel better if the
complaints resulted in something for which the person was
[charged]. He expressed concern with possible abuse.
REPRESENTATIVE BERKOWITZ pointed out that filing a false police
report is already a crime.
Number 0531
REPRESENTATIVE MEYER explained that he co-sponsored this
legislation because there is a problem in Anchorage, especially
with absentee landlords. Often, there is a lot of police
attention given to these properties as well as taxpayer dollars.
Therefore, Representative Meyer felt that this is an attempt to
encourage absentee landlords to take corrective action or help
pay for some of the expenses. Representative Meyer commented
that HB 135 has achieved concurrence from both the Anchorage
mayor's office and the Anchorage Assembly.
REPRESENTATIVE OGAN surmised that this legislation might result
in the net effect of moving undesirable folks from Anchorage to
the Mat-Su Valley, which is not a municipality and is served by
the State Troopers. The State Troopers are not allowed to
charge for excessive calls.
CHAIR ROKEBERG expressed concerns similar to that of
Representative Ogan in regard to apartment dwellers.
REPRESENTATIVE JAMES indicated she was concerned about whether
there is due process for the tenant or the landlord. She
questioned whether it should be addressed in HB 135.
Number 0713
REPRESENTATIVE COGHILL remarked that he gets nervous when liens
are placed on property. He informed the committee that
Fairbanks has approximately six hotel establishments that rent
to transient people. The police are often called to these
places. He expressed the need to address such situations via HB
135.
REPRESENTATIVE GUESS pointed out that HB 135 currently focuses
on residential property and that hotels are commercial property.
CHAIR ROKEBERG mentioned his experience in defining residential
real property under Alaska's statutes, which [define]
residential real property as being [property that is smaller
than] a four-plex. Therefore, he asked if Representative Guess
would oppose adoption of that.
REPRESENTATIVE GUESS expressed her willingness to consider it,
but she wanted to take more time because some of the problems
are with the larger apartment buildings.
Number 0847
MARK MEW, Deputy Chief, Anchorage Police Department (APD),
testified via teleconference. He noted that he had sent a
letter of support to Representative Guess. The Anchorage Police
Department supports HB 135. Mr. Mew said that it is nice that
this bill allows the ordinance to be crafted at the local level.
In regard to the discussion surrounding larger apartment
buildings, Mr. Mew thought such locations would be a logical
application of this law. He mentioned that APD had responded to
a large apartment building more than 250 times a year for about
three years in a row; the owner also owned about three other
buildings, all of which had significant responses as well.
Therefore, this bill is a way to ferret out such owners, contact
them early, and recover some of the costs. Mr. Mew reiterated
his support.
MR. MEW turned to Representative James' remarks regarding notice
to the property owner. Mr. Mew agreed with providing the
property owner notice before fining a person. He understood
Representative James to read HB 135 as providing notice to the
property owner each time the police go to the property.
However, Mr. Mew expressed his hope that the language is broad
enough that the police would notify the property owner after a
specified threshold. If that's not the case, he wasn't certain
that the police would be able to notify each property owner each
time the police respond. He noted his preference for there to
be a computer system that could screen out the logical
candidates.
MR. MEW then turned to Representative Ogan's concerns regarding
harassment. Mr. Mew agreed that hypothetically there could be a
problem with that. However, he didn't believe that would be a
large problem. He informed the committee that the enhanced 911
system collects peoples' names and locations; thus if there is
one neighbor repeatedly calling in on another, that would be
available as evidence of harassment or a false report. Mr. Mew
reviewed how a computer system could provide data that could be
sorted in order to determine who should receive letters.
Number 1213
REPRESENTATIVE JAMES related her perspective that it would be
courteous to notify landlords that the police had responded to
their property. However, she didn't believe that it was
necessary to include in this legislation, but she indicated the
hope that the municipality would view the landlord as an asset
in these situations.
MR. MEW said he believes that 99 percent of the landlords would
like to cooperate and don't want their places trashed. However,
in his opinion, he believes there are some landlords whose
market niche is exactly the opposite, and those folks are
expensive to deal with. Mr. Mew informed the committee that APD
is working with the landlords in Anchorage by offering a
landlord/tenant school. In regard to notifying every landlord
of each response, it often requires an investigation in order to
determine who the landlord is. Mr. Mew reiterated that he
wasn't sure that [APD] could [notify the landlord of each
response at his/her property].
REPRESENTATIVE OGAN related his belief that by getting landlords
to be more responsible, these [problem] people would be
dispersed throughout the community. Specifically, he is
concerned that these people would move to the Mat-Su Valley.
Although Representative Ogan related his belief that HB 135 is
well-intentioned, he did have concerns due to possible residual
effects. He indicated that changing the bill such that it would
allow troopers to fall under this as well would provide him more
comfort. Representative Ogan inquired as to where these tenants
are going to go if their landlords clean up their act.
Number 1460
ALLAN E. TESCHE, Member, Anchorage Assembly, testified via
teleconference. Mr. Tesche remarked that this legislation is
primarily intended to address drug houses, illegal alcohol
establishments, and gambling in urban areas. Mr. Tesche noted
that he is speaking from experience with Anchorage's attorney's
office as well as personal experience with a "crack house" in
his own neighborhood.
MR. TESCHE turned to the fact that HB 135 currently only applies
to residential properties. He strongly recommended that this
bill not be limited to four-plexes because some of the larger
complexes have some of the most serious problems. The
amendments made in House Community and Regional Affairs Standing
Committee (HCRA) were excellent because they make it clear that
there must be a warning to landlords, actual notice to the
property owner, and consideration of a good-faith effort to take
corrective action by a landlord. Mr. Tesche emphasized that the
most important aspect of HB 135 is that it allows local
governments the ability to craft the ordinance. This committee
could, over the next several days, carve out all of the due
process [provisions] and definitions necessary to make the
ordinance work. However, if municipalities are not trusted to
pass such ordinances, then this bill shouldn't pass the
legislature. Mr. Tesche related his belief that local
governments can pass responsible local legislation along the
guidelines established in statute.
Number 1602
MR. TESCHE turned to the earlier mention of an amendment to the
Landlord Tenant Act in order to make it easier for landlords to
deal with these problems. He felt such a change would be
acceptable as long as the changes were fair to both the landlord
and the tenant. However, he hoped that such amendments wouldn't
slow the progress of HB 135 through the legislature. He then
turned to the mention of neighborhood feuds; this bill doesn't
authorize or sanction private causes of action for private
disputes. Neighborhood feuds could be addressed at the local
level. He related his belief that Representative Ogan's concern
is misplaced, as is the notion that HB 135 is shifting problems
from Anchorage to the Mat-Su Valley. Therefore, Mr. Tesche
predicted that this bill would result in Anchorage's cleaning
itself up. Furthermore, if problems do arise in the Mat-Su
Valley, then corrective legislation could be considered. In
conclusion, Mr. Tesche urged support of HB 135.
CHAIR ROKEBERG agreed that large multi-family dwellings should
not be excluded. However, he noted that he is considering
offering an amendment that would provide the owner of the
property an affirmative defense if [the property owner] is given
notice to quit that is delivered prior to the imposition of the
fee. He asked if such an amendment would be appropriate.
MR. TESCHE answered that on the surface the amendment sounds
reasonable; however, he said that he would have to think about
it.
CHAIR ROKEBERG pointed out that under either the Landlord Tenant
Act or common law, there is a requirement of 30 days' notice for
noncause. He said that a tenant could conceivably be in place
for 59 days before he/she has to quit the premises, if it is not
for failure to pay rent.
REPRESENTATIVE JAMES indicated that there is some new language
in the Landlord Tenant Act regarding [the notice].
MR. TESCHE reiterated that on the surface [Chair Rokeberg's
amendment] sounds reasonable. He pointed out that on page 2,
line 2, of Version P it states that "the property owner is not
liable for the fee if that action is promptly taken." Mr.
Tesche offered that this language provides a clear guideline to
the municipalities to establish something by perhaps defining an
"appropriate corrective action." He said this would probably be
addressed at the local level.
CHAIR ROKEBERG remarked that he wasn't surprised by Mr. Tesche's
comments. However, "we" have some proprietary issues with what
should be in statute in terms of granting powers to local
assemblies.
MR. TESCHE commented, "That is a policy decision that the
legislature alone will decide."
REPRESENTATIVE JAMES expressed the need to review the Landlord
Tenant Act because she recalled that there were revisions
regarding drug uses. However, she felt that this should be
separate from HB 135 due to the need for a change in the title.
[There was discussion regarding how the committee should proceed
with this bill.]
Number 1919
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence
and Sexual Assault (ANDVSA), noted her appreciation of the
exceptions for domestic violence and stalking. She noted that
she has brought forward a further concern regarding an exception
for victims of sexual assault, although she realized the
difficulty in crafting language "that specifies ... the statute
that you don't want them to charge." She explained that with
domestic violence and stalking there are often repeated acts,
whereas with sexual assault there would not be, although the
victim may request police to do drivebys and check the premises
for prowlers. She expressed her hope of working with the
sponsor to find a solution. However, there is a national and
state history that illustrates that law enforcement has not
always responded promptly in cases of domestic violence or
sexual assault. Ms. Hugonin acknowledged that [HB 135] aims to
discourage repeat visits of law enforcement. However, she has
folks with whom she wanted to encourage law enforcement to make
visits as necessary and not have the individual charged. Ms.
Hugonin noted that she has not been able to craft language that
would help address the sponsor's concern. Although she didn't
necessarily want to stall HB 135, she felt that it was an
important matter that should be dealt with.
Number 2039
REPRESENTATIVE JAMES remarked that Ms. Hugonin's concern could
be dealt with at the local level, where it could be made more
specific than in HB 135. She asked if Ms. Hugonin would be
comfortable with the committee's moving the bill.
MS. HUGONIN related her reluctance to say "comfortable,"
although she understood the [need for] immediacy. Ms. Hugonin
said, "Victims of sexual assault should not have to pay for
repeated visits from law enforcement when they're asked to go to
their residence."
REPRESENTATIVE BERKOWITZ announced his intent, in voting for
this legislation, that victims of sexual assault wouldn't be
required to pay the cost for repeated calls to law enforcement.
He said he was sure that was the intent of every member of the
committee.
CHAIR ROKEBERG asked, "What if they are spurious calls?" He
said that the municipality could make an exception for [spurious
calls].
REPRESENTATIVE BERKOWITZ explained that the intent is for the
municipality to exhibit special sensitivity to the victims of
sexual violence because some of the residual effects require the
police to make additional responses to the [victim's] residence.
REPRESENTATIVE JAMES reiterated that at the local level it could
be determined whether these are the calls that they want to stop
or don't want to stop.
REPRESENTATIVE MEYER, as a former member of the Anchorage
Assembly, said he would guarantee that domestic violence and
sexual assault would be made an exception.
CHAIR ROKEBERG asserted that sexual assault is not included in
HB 135.
REPRESENTATIVE BERKOWITZ said that HB 135 does include sexual
assault because domestic violence is defined in AS 18.66.990 as
a crime against a person under AS 11.41, which includes sexual
assault statutes.
Number 2160
MS. HUGONIN said, "When they are domestic violence situations.
There are situations of sexual assault that, of course, are not
domestic violence." Ms. Hugonin said she appreciated the
proclamation of Anchorage's intent, which she hoped would be the
intent of municipalities statewide. However, she reiterated
that there have been occasions in the past when law enforcement
has refused to [respond] to situations of domestic violence and
sexual assault. Although that hasn't happened in several years,
Ms. Hugonin said she still hears complaints regarding having to
respond to such calls. Therefore, the public policy needs to be
clear that the aforementioned calls are not the kinds of calls
for which municipalities are meant to charge.
CHAIR ROKEBERG remarked that he didn't believe that HB 135
resolved [Ms. Hugonin's concern]. Furthermore, he didn't
believe that it was solvable via drafting.
REPRESENTATIVE BERKOWITZ reiterated that it is an issue that can
be handled at the local level. In response to Chair Rokeberg,
Representative Berkowitz pointed out that municipalities can
define that the fee may not be imposed.
CHAIR ROKEBERG surmised, then, that municipalities could have a
list of exceptions.
REPRESENTATIVE JAMES mentioned that it was hard for her to
believe that municipalities wouldn't hear [testimony on this
issue] while creating the ordinance.
CHAIR ROKEBERG expressed concern with the possibility of having
"the classic 'wolf' crier that might fit into one of those
categories."
REPRESENTATIVE BERKOWITZ commented that government has moved
away from the notion of discretion, even though everything can't
be listed all the time. At some point, "we" must [acknowledge]
that those in the field doing the job are qualified and will
exercise good discretion. However, he acknowledged that there
will be instances in which the wrong choice is made.
Number 2304
CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 1:
Page 1, line 7, after "property";
Insert "including a multi-family dwelling over
four units"
REPRESENTATIVE COGHILL reiterated that this bill is geared
toward urban issues.
[There was discussion regarding what would be considered a
commercial property.]
REPRESENTATIVE MEYER interjected that Representative Guess's
intent was to exclude commercial property.
Number 2410
CHAIR ROKEBERG asked whether there were any objections to
Conceptual Amendment 1. There being no objection, Conceptual
Amendment 1 was adopted.
Number 2419
CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 2,
which he specified as follows: "providing that an affirmative
defense for the owner of residential property, including multi-
family dwellings over four units, is the notice to quit
delivered to a tenant prior to the imposition of the fee."
REPRESENTATIVE BERKOWITZ objected for discussion purposes. He
said the problem seems to be that an offending owner could evade
responsibility simply by providing notice and not taking any
subsequent action.
CHAIR ROKEBERG pointed out that a notice to quit is legal notice
that is provided for under the Landlord Tenant Act, which says
that "the notice to quit is delivered to the tenant." In
response to Representative Berkowitz, he said that one would
have to make a delivery of the actual notice. In further
response to Representative Berkowitz, Chair Rokeberg offered
that the notice to quit is a term of art meaning that [the
tenant] leaves the premises.
REPRESENTATIVE JAMES noted that she liked [Conceptual Amendment
2] as a solution because it specifies that the landlord has the
option to tell the tenant to get out.
TAPE 01-63, SIDE B
Number 2465
CHAIR ROKEBERG pointed out that Conceptual Amendment 2 is a
conceptual amendment. He restated his amendment as follows:
"An affirmative defense for the owner of residential property,
including multi-family dwellings over four units, is the notice
to quit delivered to a tenant prior to imposition of the fee."
MR. MEW turned to Conceptual Amendment 2. He posed a situation
in which a building has 20 or 30 units, 10 of which are crack
houses. Does [Conceptual Amendment 2] mean that after 200 calls
for service, there would be an attempt to bill the landlord for
police activity? If the landlord served one eviction notice to
one individual, would the process start over again? He noted
that the crack dealers move around and thus it is difficult to
know what is happening at any given time in each room. However,
the end result is that the police are going to the same
apartment complex 200 times a year for people that are living in
different units at different times.
REPRESENTATIVE JAMES inquired as to [Mr. Mew's opinion] of
adding the language that specifies that the notice to quit
[would be delivered] to the offenders.
REPRESENTATIVE BERKOWITZ suggested that [language could be
inserted] that says "municipalities may provide for an
affirmative defense" and let the municipality determine the
defense.
CHAIR ROKEBERG announced his preference to make that an
affirmative defense. However, he noted his willingness to amend
the amendment to provide for the "musical-chair tenant."
MR. MEW related his vision of how this would work in Anchorage.
He anticipated that a notice of the intention to bill would be
sent to the landlord, which would generate some discussion that
[would set some goals for the landlord to attempt to work this
out]. Mr. Mew viewed this as a long-range tool.
CHAIR ROKEBERG acknowledged that a situation as described by Mr.
Mew could happen, which would defeat the purpose of his
amendment.
MR. MEW informed the committee that many of the [callers] will
not identify themselves, and provide no information. Although
the police eventually learn to identify certain people, the
[police] will never learn who the actual tenants are and the
rooms to which they belong. Therefore, he believes it would be
difficult to hang [the affirmative defense] on the landlord's
being able to serve legal notice on one person. He felt that
notice may be served on one apartment, but that would negate
"your" effort.
Number 2270
CHAIR ROKEBERG made a motion to amend Conceptual Amendment 2,
"to prohibit that tenant from moving from one unit to another
within the same dwelling, multi-family dwelling, or project
thereof, under the same ownership."
Number 2248
REPRESENTATIVE BERKOWITZ objected and said he didn't believe
that would address Mr. Mew's concern or get to the root of the
problem.
REPRESENTATIVE JAMES pointed out that page 2 of Version P reads
as follows: "The ordinance must also define 'appropriate
corrective action' ... and provide that the property owner is
not liable for the fee if that action is promptly taken."
Therefore, she felt that it might be covered. Furthermore, the
burden of defining this is placed on the municipality.
REPRESENTATIVE BERKOWITZ indicated agreement and remarked that
it is local control.
REPRESENTATIVE JAMES continued by relating her belief that the
property owners are being protected because they can take
corrective action, and if they don't like it, they could go to
court.
CHAIR ROKEBERG, speaking as a former landlord, said he would
trust the assembly. He related his belief that it would be a
bad body of law if there is statute on the books that can't be
made an affirmative defense and doesn't result in an affirmative
defense. Chair Rokeberg said, "And because of the way it's
drafted right now, you could have up to 59 days where the
landlord has no ability unless there is a provision for a
nuisance ability to force that person out quicker."
REPRESENTATIVE BERKOWITZ related his understanding that Chair
Rokeberg is concerned that the landlords would be "on the hook"
even if they made a good-faith effort. Therefore, he suggested
inserting language that says, "The landlord must make a good-
faith effort to remediate the problem."
REPRESENTATIVE JAMES reiterated her belief that HB 135 already
says that.
CHAIR ROKEBERG returned to Representative James' earlier
statement that as a landlord, sometimes the only alternative is
to deliver the notice to quit. Then, if the person overstays
his/her statutory limit, law enforcement can oust him/her from
the premises.
REPRESENTATIVE BERKOWITZ said that there are other things that
can be done besides provided the notice to quit.
CHAIR ROKEBERG emphasized that this is a very tenant-friendly
statute.
REPRESENTATIVE JAMES asked if a committee substitute could be
brought before the committee.
Number 2077
CHAIR ROKEBERG announced that the committee could require that
appropriate corrective action include a notice to quit. He
asked if the committee wanted to do that. He said that could be
considered Conceptual Amendment 2 [which would replace the
previous Conceptual Amendment 2].
REPRESENTATIVE BERKOWITZ said that would be fine and removed his
objection to [the new] Conceptual Amendment 2.
Number 2043
CHAIR ROKEBERG asked whether there were any objections to
Conceptual Amendment 2, as restated. There being no objection,
Conceptual Amendment 2 was adopted.
Number 2029
REPRESENTATIVE BERKOWITZ moved to report CSHB 135, version 22-
LS0421\P, Cook, 4/11/01, as amended, out of committee with
individual recommendations and the accompanying zero fiscal
notes. There being no objection, CSHB 135(JUD) was reported
from House Judiciary Standing Committee.
HB 214 - CIVIL ACTION AGAINST MINORS IN BARS
Number 2021
CHAIR ROKEBERG announced that the final order of business would
be HOUSE BILL NO. 214, "An Act relating to a civil action
against a person under 21 years of age who enters premises where
alcohol is sold or consumed." [Before the committee was CSHB
214(L&C).]
Number 2009
REPRESENTATIVE MEYER, as the sponsor of HB 214, explained that
there is an Anchorage ordinance that allows bars to prosecute
underage minors who attempt to purchase alcohol with a fake ID.
Many of the bars, including Chilkoot Charlie's and the Brown
Jug, have used this effectively to prohibit underage people from
attempting to enter a bar. He emphasized that the program is
optional. The only requirement for the establishment is to
place a sign saying that an underage individual would be
prosecuted. [The bill packet] contains letters of support from
the Anchorage Restaurant and Beverage Association (ARBA),
Chilkoot Charlie's, and the Brown Jug. This legislation would
make the program statewide in order to deter underage drinking.
CHAIR ROKEBERG asked if anyone wished to testify on HB 214.
There being no one, the public testimony portion of HB 214 was
closed. Chair Rokeberg inquired as to the wishes of the
committee.
Number 1965
REPRESENTATIVE BERKOWITZ moved to report CSHB 214(L&C) out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 214(L&C) was
reported from the House Judiciary Standing Committee.
ADJOURNMENT
Number 1947
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:44 p.m.
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