03/01/2002 01:50 PM House JUD
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 1, 2002
1:50 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Scott Ogan, Vice Chair
Representative Albert Kookesh
COMMITTEE CALENDAR
HOUSE BILL NO. 427
"An Act relating to civil claims against a third-party; amending
Rule 14(c), Alaska Rules of Civil Procedure; and providing for
an effective date."
- HEARD AND HELD
HOUSE BILL NO. 346
"An Act relating to concealed handgun permittees."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 427
SHORT TITLE:THIRD-PARTY CIVIL ACTION
SPONSOR(S): REPRESENTATIVE(S)GREEN
Jrn-Date Jrn-Page Action
02/13/02 2246 (H) READ THE FIRST TIME -
REFERRALS
02/13/02 2246 (H) JUD
02/13/02 2246 (H) REFERRED TO JUDICIARY
03/01/02 (H) JUD AT 1:15 PM CAPITOL 120
BILL: HB 346
SHORT TITLE:CONCEALED HANDGUN PERMITTEES
SPONSOR(S): REPRESENTATIVE(S)MASEK
Jrn-Date Jrn-Page Action
01/22/02 2029 (H) READ THE FIRST TIME -
REFERRALS
01/22/02 2029 (H) STA, JUD
02/04/02 2152 (H) COSPONSOR(S): CROFT
02/21/02 (H) STA AT 8:00 AM CAPITOL 102
02/21/02 (H) Moved Out of Committee
02/21/02 (H) MINUTE(STA)
02/22/02 2361 (H) STA RPT 6DP
02/22/02 2361 (H) DP: WILSON, CRAWFORD,
STEVENS, HAYES,
02/22/02 2361 (H) FATE, COGHILL
02/22/02 2361 (H) FN1: ZERO(DPS)
02/22/02 2361 (H) REFERRED TO JUDICIARY
03/01/02 (H) JUD AT 1:15 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE JOE GREEN
Alaska State Legislature
Capitol Building, Room 403
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 427.
RICHARD A. WEINIG, Attorney
800 East Dimond Boulevard, Suite 3-620
Anchorage, Alaska 99515-2096
POSITION STATEMENT: Assisted with the presentation of HB 427.
MICHAEL J. SCHNEIDER, Attorney
800 N Street, Suite 202
Anchorage, Alaska 99501
POSITION STATEMENT: Testified in opposition to HB 427.
JENNIFER YUHAS, Staff
to Representative Beverly Masek
Alaska State Legislature
Capitol Building, Room 128
Juneau, Alaska 99801
POSITION STATEMENT: Presented HB 346 on behalf of the sponsor,
Representative Masek.
BRIAN JUDY, Alaska State Liaison
Institute for Legislative Action
National Rifle Association of America (NRA)
555 Capitol Mall, Suite 625
Sacramento, California 95814
POSITION STATEMENT: Testified in support of HB 346 and
responded to questions.
JESSE VANDERZANDEN, Executive Director
Alaska Outdoor Council (AOC)
PO Box 73902
Fairbanks, Alaska 99709
POSITION STATEMENT: Testified in support of HB 346.
DEL SMITH, Deputy Commissioner
Office of the Commissioner
Department of Public Safety (DPS)
PO Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Provided the department's position and
responded to questions during discussion of HB 346.
PATTY OWEN, Alaska Chapter
Million Mom March
7677 North Douglas Highway
Juneau, Alaska 99801
POSITION STATEMENT: Testified in opposition to HB 346.
LAUREE HUGONIN, Executive Director
Alaska Network on Domestic Violence & Sexual Assault (ANDVSA)
130 Seward Street, Room 209
Juneau, Alaska 99801
POSITION STATEMENT: Testified during discussion of HB 346 and
responded to questions.
ACTION NARRATIVE
TAPE 02-26, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:50 p.m. Representatives
Rokeberg, James, Coghill, Meyer, and Berkowitz were present at
the call to order.
HB 427 - THIRD-PARTY CIVIL ACTION
Number 0064
CHAIR ROKEBERG announced that the first order of business would
be HOUSE BILL NO. 427, "An Act relating to civil claims against
a third-party; amending Rule 14(c), Alaska Rules of Civil
Procedure; and providing for an effective date."
Number 0070
REPRESENTATIVE JOE GREEN, Alaska State Legislature, sponsor,
offered the following to explain HB 427:
If "plaintiff A" brings an action against "defendant
B," and during that action B finds out that ... there
is another person that is equally culpable or maybe
even more so, and he says, "Hey, I'm going to go
against him because he's the one that should either
share or maybe be responsible for this action," and
brings him in and wins, then [plaintiff A] gets the
action without any ... concern about the cost or ...
risk involved. And that just seems unfair. ... This
bill says that if plaintiff A wants to go against the
third-party defendant as well, then that party A
should be part of the whole action and be part of the
cost as well as ... any possible liability that would
come from that suit. So, in effect, what it does is
just evens the playing field so that ... [plaintiff A]
doesn't get rewarded without the actions taken by A;
he can't just suck up on actions taken by other
people.
Number 0250
RICHARD A. WEINIG, Attorney, after noting he has worked as a
trial attorney in Anchorage for 30 years, said that HB 427 deals
with a practical problem he has observed "since tort reform."
He elaborated:
The practical problem is that in apportionment of
liability, first plaintiff can sue a defendant, and if
the defendant thinks that someone else is liable for a
portion or all of that, they can bring that party in
as a third-party defendant. Plaintiff automatically
has a right of recovery for whatever percentage of
fault goes against either the defendant - original -
or the third-party defendant. And the third-party
defendant, if successful in exonerating himself ...,
may recover a portion of his [attorney fees] - under
Rule 82 [of the Alaska Rules of Civil Procedure] -
from the party that brought him in - the original
defendant - but he has absolutely no recourse if, for
instance, the plaintiff has refused to settle at all
on the case. And if the third-party defendant is
successful, the plaintiff has an absolutely free ride
in terms of no liability for [attorney] fees to the
third-party defendant.
My thought was that all parties to litigation should
not operate in a risk-free environment, that anyone
who is engaged in litigation should have exposure for
[attorney] fees if they are found to be unmeritorious
in their position. And, basically, what [HB 427]
would do is to give plaintiff the option of whether he
wants to seek recovery against the third-party
defendant or not. If he does, he needs to give notice
to the parties within a reasonable period of time - I
selected 30 days because that's about the time that
the original defendant has in which to decide whether
to bring in someone else.
MR. WEINIG also said:
The major change, other than that, is that if the
third-party defendant is successful in defending
himself, and no fault is apportioned against [him],
... a portion of his [attorney] fees - under Rule 82 -
may be recovered against both the plaintiff and the
[original] defendant, whereas in the present time, the
third-party defendant has no recourse against the
plaintiff. The objective here is just an even playing
field for all parties.
CHAIR ROKEBERG asked for example.
Number 0587
MR. WEINIG responded:
I'll give you an example ... of where [HB 427] might
have a beneficial influence. Take a case in which
plaintiff sues an aircraft manufacturer for personal
injury. Aircraft manufacturer brings in mom-and-pop
shop, which did some work on the upholstery in the
plane, and says they're liable for "X" percentage of
the fault. Mom-and-pop upholstery - ... [as] the
third-party defendant - ... would have no recourse
against plaintiff if they were found to be pure as the
driven snow; there'd be no holding to [attorney] fees.
And this may have a practical effect, because if - and
this is a case that has occurred - plaintiff was
unwilling to settle with mom-and-pop third-party-
defendant shop at any price, ... they have been put
through the mill of the entire judicial procedure by
plaintiff, who has no risk whatsoever.... If mom-and-
pop shop is absolved of any liability and is pure as
the driven snow, there is no chance that they will
recover any of their [attorney] fees from the
plaintiff; ... they are unable to settle with
plaintiff regardless of the amount that is being
offered, and they're being held in and there's no
recourse.
MR. WEINIG continued:
Now, this is obviously an extreme example, but it has
occurred, and it's something which could occur again.
And it is that type of situation that I think would be
highly desirable to correct.... I think it would be
highly desirable to eliminate the risk-free situation
for the plaintiff, in terms of liability for the
third-party defendant's [attorney] fees that presently
exists.
Number 0744
REPRESENTATIVE BERKOWITZ asked:
Plaintiff sues big defendant, big defendant brings in
small co-defendant, small co-defendant is found to be
not culpable, and yet you feel the small co-defendant
should be entitled to [attorney] fees against the
plaintiff, who didn't even want them in the case in
the first place?
MR. WEINIG responded:
Well, ... under the proposed bill, if plaintiff didn't
want them in the case to start with, plaintiff doesn't
have to elect to go after them for monetary recovery.
But if plaintiff didn't want them in the case to start
with - they're brought in by [the original] defendant
[and] can't settle with plaintiff and get out of it,
under any circumstance - you have an unequal situation
of risk-free behavior, as far as I'm concerned.
REPRESENTATIVE BERKOWITZ asked: Isn't the small defendant's
claim really against the large defendant who brought him/her in?
MR. WEINIG said that in part it is, but in part it isn't; "it's
being held in by two different parties." The small defendant is
facing two antagonists. He continued: "The party that brought
him in for pure apportion of default is not going to get any
recovery from small third-party defendant; the plaintiff is
going to get that money."
REPRESENTATIVE BERKOWITZ countered that according to his
understanding, large defendant - "and I use large and small here
just to distinguish" - brought small defendant in, in order to
reduce large defendant's risks; plaintiff had no initial
interest in small defendant. He added that it seems to him that
in the circumstance being used as an example, large defendant is
the one who invited small defendant to the party; therefore,
large defendant should be the one responsible for anything that
happens on account of small defendant's "being held responsible
or not responsible."
MR. WEINIG opined that that's partly true, but not totally true.
He elaborated:
Both the plaintiff and the third-party plaintiff - the
large defendant you're talking about - should be
responsible for equally splitting whatever [attorney]
fees are awarded to small third-party defendant if
small third-party defendant is pure as the driven
snow.
Number 0909
REPRESENTATIVE BERKOWITZ noted that the presumption in this
hypothetical example is that plaintiff agrees to small party's
joining. What if plaintiff disagrees that the small party
should be brought in?
MR. WEINIG said that third-party defendant will be brought in
whether plaintiff agrees or not. But if plaintiff wants to get
money from that third-party defendant, plaintiff - under [HB
427] - would have to elect to do so. "At the present time it's
automatic - the plaintiff does [get the money]," he added.
CHAIR ROKEBERG asked whether language [in Section 3] allows the
plaintiff to file a motion that "gets rid of the third-party
defendant."
MR. WEINIG said no. He reiterated that the third-party
defendant is still going to be there, pointing out that language
in Section 3 refers to filing a notice, not a motion. This
notice by the plaintiff would be stating whether or not he/she
wants to "seek recovery against" the third-party defendant.
REPRESENTATIVE BERKOWITZ pointed out, however, that the amount
that the plaintiff would recover for the injury is the same
whether it's just against big defendant or big defendant and
small defendant. "So, why does the plaintiff benefit from
taking the additional risk of bringing small defendant to the
party?" he asked.
MR. WEINIG said that if small defendant were not a party, then
"100 percent would be divided between plaintiff and original
defendant." If the third-party defendant is "in there, you've
got a three-way split of percentages leading to 100 percent."
He continued:
In the situation where plaintiff - under this bill -
would elect to go against third-party defendant, you'd
have the three-way split in terms of the actual
assignment of proportions of liability and also in
terms of the monetary division. ... Let's say,
plaintiff's 40 percent at fault, original defendant is
30 percent at fault, third-party defendant is 30
percent at fault; you've got ... 100 percent there,
and plaintiff will get 60 percent - 30 [percent] from
original defendant, 30 [percent] from third-party
defendant. If plaintiff does not elect to seek
recovery against the third-party defendant, then ...
plaintiff gets the 40 percent, original defendant gets
the 30 percent, third-party defendant gets the 30
percent, but plaintiff can only recover money from the
original defendant. It's a policy choice, pure and
simple.
Number 1122
CHAIR ROKEBERG asked: "Why would we want to prohibit the
plaintiff from recovering from the third-party defendant if the
third-party defendant was apportioned 30 percent of the
responsibility?" In response to a question from Mr. Weinig, he
clarified that his question is: "Why would you not want to
recover that 30 percent from the third-party defendant?"
MR. WEINIG replied that plaintiff could do so, under HB 427, if
plaintiff elects to bear the risk of ... being exposed to
attorney fees. "If he does not want to bear [the] risk of being
exposed to [attorney] fees, he doesn't get the 30 percent that
the third-party defendant is tagged for," he added. It's the
plaintiff's choice, early in the game, and if he/she wants to
bear the risk of going after the third-party defendant, only
then is he/she entitled to full recovery.
REPRESENTATIVE JAMES said that according to her understanding of
the original example discussed:
The plaintiff pursues the original defendant, and that
was one with the big pocket. The big pocket reaches
out and says, "Well, no, there's some culpability over
here," and then everyone agrees, "Okay, this is what's
happening." And then [it] turns out that this
additional defendant ... was not culpable and was not
responsible, but in the meantime, that defendant had
to also pay money to protect his interest. Now, ...
this guy has no place to go to get compensation? Or
can he go to the first defendant who brought him in?
Or you're wanting him to have recourse against the
plaintiff?
Number 1224
MR. WEINIG said that under the present system, the innocent
third-party defendant has recourse against the party that
brought him/her in. He noted, however, that "all of these
things are not for full [attorney] fees, they're 20 or 30
percent." He explained that what he is suggesting is that if
plaintiff wants recovery against this third-party defendant, and
if the third-party defendant is pure as the driven snow, then
his/her attorney fees shall be borne equally by the plaintiff
and the party that brought him/her in. He remarked that this is
because "both parties were holding him in; he could not, for
instance, be dismissed out on settlement without consent of both
the party that brought him in - the original defendant- and the
plaintiff." So, since both the plaintiff and the original
defendant hold the third-party defendant in, both should be
equally liable for a portion of attorney fees.
REPRESENTATIVE JAMES, using a similar example but with the
exception that the third-party defendant was culpable in some
respect, asked Mr. Weinig whether he is saying that [under HB
427], in order for the third-party defendant to be brought in,
the plaintiff has to agree.
MR. WEINIG said no, he is not saying that. "What I'm saying is
that the only action plaintiff takes is to notify the court
whether he wants to get money from the third-party defendant or
not," he explained. This has nothing to do, he remarked, with
whether the third-party defendant can be brought into the case.
REPRESENTATIVE JAMES asked how the attorney fees would be
apportioned if both the third-party defendant and the original
defendant are found culpable.
MR. WEINIG said:
That would be governed on a percentage basis. The
plaintiff, in that case, would be the prevailing party
because he got recovery against both of them. And,
since he made a monetary recovery, there's a schedule
in Rule 82 that sets up a given percentage of fees
that are to be recovered. Let's say it's "X" percent
of the first [$]25,000, and "Y" percent of the next
[$]75,000, and "Z" percent of the sums over that; that
is the percentage rule that would be applied in
awarding [attorney] fees to the plaintiff where there
is monetary recovery. And I would imagine that those
fees, once the amount of them has been determined from
this percentage of the recovery, probably should be
borne between the original defendant and the third-
party defendant on the basis of their comparative
fault.
Number 1434
In other words, let's say that the [attorney] fees
awarded on the "ruling to schedule" comes out to
$60,000, and let's say that the original defendant was
30 percent at fault, and let's say that the third-
party defendant was 70 percent at fault. Now, in
dividing up the $60,000, first defendant would be
paying 30 percent of that and the other would be
paying 70 percent of that.
REPRESENTATIVE JAMES said she assumes that if no fault is found
with either the original defendant or the third-party defendant,
"then the plaintiff has to pay something for bringing a claim
that he didn't win." She asked how the money gets distributed
if that is the case.
MR. WEINIG indicated that her assumption is correct. He
explained that if plaintiff is found to be 100 percent at fault,
the original defendant would be able to recover probably 20 to
30 percent of his/her attorney fees under Rule 82 as it exists
now. And, currently, the third-party defendant would be able to
recover probably 20 to 30 percent "against the guy who brought
him in," but would not be able to recover anything from the
plaintiff. Mr. Weinig opined that if the plaintiff wants to
collect money from the third-party defendant, "he should be at
an equal position of exposure" to that third-party defendant, as
is the original defendant, when it comes to attorney fees. He
remarked that although currently the plaintiff has "gotten a
free ride" in such situations, in fairness to everyone, the
third-party defendant's attorney fees should be split between
the original defendant and the plaintiff.
MR. WEINIG, in response to further questions, explained that
according to HB 427, in order for the plaintiff to eliminate
exposure to the third-party defendant's attorney fees, the
plaintiff merely has to notify the court that he/she is not
seeking any recovery from the third-party defendant, only from
the original defendant. He acknowledged, however, that if the
plaintiff does so notify the court and it later turns out that
the third-party defendant is 100 percent culpable and the
original defendant is not culpable at all, the plaintiff does
not recover anything; the plaintiff has simply made a bad
decision.
Number 1896
REPRESENTATIVE JAMES indicated that the current practice seems
to be the fair way. If a defendant chooses to bring in a third-
party defendant, then the original defendant should pay any
attorney fees owed to the third-party defendant, she opined.
CHAIR ROKEBERG remarked that that is the current practice.
MR. WEINIG argued that that isn't quite the way it is now, due
to tort-reform legislation enacted back in 1997. He pointed out
that AS 09.17.080 stipulates that all fault should be
apportioned based upon everyone's percentage of fault. Thus,
plaintiff cannot simply sue the original defendant for 100
percent without allowing the original defendant to "apportion
that down to other people." He acknowledged, however, that "the
situation that I'm dealing with is a very minor part of some of
these problems that have emanated from the 1997 tort-reform
[legislation]." He opined it is only equitable, if someone
wants recovery from someone else, that it not be done in a
totally risk-free environment. In response to a question, he
noted that Rule 82 is designed to only partially compensate
someone for his/her costs and attorney fees.
REPRESENTATIVE BERKOWITZ noted that if there is a good reason to
do so, the court can expand the amount of recovery established
by Rule 82.
MR. WEINIG concurred.
CHAIR ROKEBERG, to clarify, stated that who they have been
referring to as the original defendant is called the "third-
party plaintiff" in HB 427.
MR. WEINIG concurred. The original defendant is wearing two
hats: he/she is both defendant to the original plaintiff, and
plaintiff to any third-party defendant that he/she might choose
to bring in.
REPRESENTATIVE JAMES observed that there is a relationship
between the third-party defendant and the plaintiff; had the
plaintiff not filed a suit to begin with, the third-party
defendant would not have become involved.
CHAIR ROKEBERG mentioned that typically, a plaintiff will file
against multiple defendants. He asked whether these defendants
would always be considered original defendants.
Number 2184
MR. WEINIG said yes; a defendant is not considered a third-party
defendant unless an original defendant brings him/her in.
REPRESENTATIVE GREEN noted that for purposes of HB 427, the
plaintiff would [initially] only be responsible to any original
defendants.
CHAIR ROKEBERG surmised that under HB 427, a third-party
defendant could possibly receive up to 100 percent of his/her
attorney fees by seeking an additional award from the plaintiff.
REPRESENTATIVE JAMES, after noting HB 427 stipulates that a
plaintiff must notify the court whether he/she intends to seek
damages from a third-party defendant, asked how a plaintiff
would know whether or not a third-party defendant is at fault;
"that sounds like a trap to me."
MR. WEINIG reiterated that HB 427 allows a plaintiff 30 days in
which to decide whether or not to seek damages from a third-
party defendant. He added, however, that the key concept is
that this decision "should be within a reasonable time -
whatever is deemed to be reasonable." He continued:
I would imagine that given the rules of amending
pleadings, which are very liberally applied by the
courts, that probably leave to amend that intention
could be worked into this concept too. For instance,
if plaintiff originally says, "I elect not to go for
this fellow, this third-party defendant," and eight
months later decides that he wishes to do so, I think
provision could very easily be made for seeking leave
to amend to do so. And, at that point, the
relationship of potential liability for that party's
[attorney] fees would kick in at the time he elected
to go after him. But I would think that it would be
no trouble at all to allow whatever this body deems to
be a reasonable time for plaintiff to make that
election, and reasonable provisions for amending that
should he wish to change that later. That is
customary with every other pleading, like an answer or
a complaint; it should be true for this.
Number 2342
REPRESENTATIVE GREEN asked why wouldn't the plaintiff merely
wait until he/she could see how the case was going and then
decide whether to seek recovery from the third-party defendant?
Shouldn't there be an earlier commitment?
MR. WEINIG said that a good reason why there should be an early
commitment is because it defines the roles of the parties.
Whether leave should be given later on, there are arguments that
go both ways. He continued:
I think a better argument is to have folks make
decisions real early in the game, so that everyone
knows what the playing field is going to be, but I am
not so inflexible to say that it's an absolute bar.
But I think 30 days is a good rule. And if one wishes
to, say, seek leave to withdraw that or amend it, you
might be able to, for a really-good-cause-shown type
of basis. There is almost nothing in the way of an
answer or a complaint or other pleading that is
totally beyond amendment, but I like the idea of
making the decision very early in the game - 30 days
or some similar reasonable date - so that everyone
knows what the game rules are.
Number 2407
MICHAEL J. SCHNEIDER, Attorney, testified via teleconference.
After noting that he has represented injured Alaskans and their
families for over a quarter of a century and, thus, has some
familiarity with the process that is the subject of HB 427, Mr.
Schneider said that HB 427 "is a solution in search of a
problem." He elaborated:
Most of the members of this committee know - formally
or on an informal basis - different superior court
judges and justices of the supreme court. I would
encourage each committee member to walk up to one of
these folks and say, "Listen, we have this bill; is
this really a problem, are there any abuses out there
that you see, are plaintiffs getting away with murder,
[or] are defendants ... - either the main defendant or
the secondary defendant - ... being hurt by the way
business is currently being done?" And when they get
done rolling their eyes and slapping their thighs,
they're going to tell you there is no problem to be
addressed; they're not going to be able to give you a
good reason why this bill is in front of you.
Secondly, I would like the members of the committee to
hearken back to some of the hard times we all had
together during what I refer to as the tort-reform
wars. It was one of the legislature's concerns that
people that make claims, that haul their fellow
citizens into court, have to stand behind those
claims, and if they're not good claims, they should
[bear the burden of Rule 82].
TAPE 02-26, SIDE B
Number 2474
MR. SCHNEIDER continued:
In other words, the legislature liked and endorsed
Alaska's existing Rule 82 procedure. Secondly, the
legislature was concerned, and it's my sense of the
body that it remains concerned, about those - no
matter who they are - who bring frivolous and
unwarranted claims. If we keep those two concepts in
mind, and then track what this bill does, I think it
becomes pretty obvious, pretty quickly, that this is
an idea whose time has not come. This bill does
nothing but encourage frivolous claims by ... the main
defendant - the first defendant that plaintiff sued -
against other people upon whom that defendant wishes
to lay off liability.
Let's do the math a couple of times using
hypotheticals that this committee has just had before
it. In the first situation, plaintiff is 40 percent
at fault, the defendant that plaintiff sued is 30
percent at fault, [and] the secondary - or third-party
- defendant that the first defendant brings in is 30
percent at fault. Okay, what you've got to realize is
that ... Rule 82 is not the name of the game here.
If you've seen many movies, in drug investigations
they always say, "Follow the money"; [you've] got to
follow the money here to see what's going on.
Defendant 1 brings in defendant 2 because -- what
happened in our hypothetical? Their exposure was
halved. They went from being potentially 60 percent
at fault, and paying 60 percent of the bill, to paying
only 30 percent of the remaining liability after
plaintiff's comparative negligence. That is that
first defendant's benefit from engaging in this third-
party practice; it's really not motivated by a little
Rule 82 award.
Number 2393
MR. SCHNEIDER went on to say:
If you take the other hypothetical: Okay, so first of
all, when the ... secondary defendants, the third-
party defendants - those brought in, not by plaintiff,
but by the defendant that plaintiff sued - when those
are righteous claims, ... you don't have to worry
about the Rule 82 awards. The defendant that brings
those claims is going to be rewarded because their
liability is greatly reduced. Now, yes, that
defendant will also be rewarded because, having made
the claim, the benefit and burden of Rule 82 thus far,
before this bill, tracks the party that makes a claim.
In other words, ... you want to make a claim; that's
nice [but] it had better be good. If it is good, you
get a little more than [attorney] fees; if it's bad,
you pay [attorney] fees. That's the way it ought to
be.
Now, when those third-party claims are righteous,
defendant that brings them is rewarded because their
liability is reduced. Let's go to [an] instance where
those claims are frivolous, because that's where the
game is here. If defendant 1 brings a frivolous claim
against defendant 2 and 3 and 4 -- and why would they
do that? ... If defendant 2 and 3 and 4 have no
assets, if they have no insurance, if they have,
frankly, only scarce liability, defendant still
desperately wants to lay off their fault; they do not
want to accept the personal responsibility that has
been a constant theme with this legislature for many
years.
And what do they want to do through this bill? They
want to make sure that their effort to avoid their
personal responsibility is foisted off on plaintiff,
who never wanted to drag these parties into the
lawsuit to begin with. That's what the agenda is
here. The defense bar wishes to create a situation
where they can name - now remember, plaintiff hasn't
taken the shotgun approach, the defense has - all the
king's horses, all the king's men, liable or not, and
try to get enough empty, undefended chairs out there
so, justice notwithstanding, they can reduce
plaintiff's recovery by foisting off liability on the
disinterested and the uninsured and the unrepresented.
And they wish to burden the plaintiff with the bill
for doing that; that's what this bill accomplishes.
Number 2253
MR. SCHNEIDER continued:
If you take a look at a couple of comments that were
made to you a moment ago by ... Mr. Weinig, who
drafted this legislation, he suggested that plaintiff
take a hard a look at plaintiff's own case. Well,
heck, plaintiff took a hard look at plaintiff's own
case when plaintiff came into court and sued the
defendant [whom] plaintiff wanted to sue. Now, Mr.
Weinig asks that we take a look in 30 days: we don't
get any discovery, we don't have any information, this
is the first defendant's idea to bring these other
folks in. He asks us to take a hard look at a case we
don't know anything about, in 30 days. If this body
is convinced that it's got to pass this bad idea, then
it should make that 30 days, 30 days before trial or
60 days before trial or 90 days before trial. At
least then we'd have a chance to know what it is we're
dealing with because discovery will have taken place.
This bill is not there to level an already reasonably
level playing field, where the burden of making a
claim - the Rule 82 burden - tracks those people
asserting that claim. This bill is designed to ...
allow a defendant to sue people that may or may not
have anything to do with a given case, and then give
the plaintiff the Hobson's choice of endorsing that
election or not, in a time frame when they can't make
a reasonable decision. It's simply a bad idea. As
Representative James observed, the way business is
done now is the fair way, and ... introducing this
bill sets up a trap for people who are already
injured, who are already in court because they need to
be there and have to be there because of what's
happened to them. And it makes them take
responsibility for a lawsuit they didn't bring against
people they didn't want in that lawsuit; it's just not
fair.
Number 2145
CHAIR ROKEBERG, after noting that there were no further
questions at this time, announced that HB 427 would be held
over.
HB 346 - CONCEALED HANDGUN PERMITTEES
[Contains brief reference to SB 242, the companion bill to HB
346.]
Number 2140
CHAIR ROKEBERG announced that the last order of business would
be HOUSE BILL NO. 346, "An Act relating to concealed handgun
permittees."
Number 2110
JENNIFER YUHAS, Staff to Representative Beverly Masek, Alaska
State Legislature, sponsor, explained on behalf of the sponsor
that HB 346 was introduced in response to inaction by the
Department of Public Safety (DPS) to recognize other states
under Alaska's "concealed-carry" laws. In response to questions
she noted that HB 346 is the companion bill to SB 242, and that
although amendments were offered for SB 242, it passed the
Senate unamended.
Number 2051
BRIAN JUDY, Alaska State Liaison, Institute for Legislative
Action, National Rifle Association of America (NRA), testified
via teleconference in support of HB 346. He said:
In 1994 the Department of Public Safety disseminated a
white paper on the original "conceal-permit" law,
[which] was HB 351, by Representative Jeanette James.
The paper was entitled "To Conceal or Not to Conceal,
That is the Question," and it was full of suggestions
and predictions that there would be more guns at
grocery stores, on ball fields; fender-benders would
become shootouts. And in fact it was the same set of
warnings that we heard in every other state that had
considered "right-to-carry" legislation.
... Interestingly, the Department of Public Safety has
acknowledged, in hearings on this bill, [that] the
outcome in Alaska has been, in fact, the same as every
other state: There have been virtually no problems
caused by concealed-weapon permit holders in any
state. ... This is a very important point; the
empirical evidence from every state that's issued
permits, regardless of the level of qualification or
training standards, is the same: Law-abiding citizens
who have been issued right-to-carry permits are
exercising their constitutional right to bear arms and
their natural right to defend themselves, with the
utmost responsibility.
... The major concern that we've heard expressed to
this bill is that it's going to cause the State of
Alaska to have to recognize permits from other states
that may not have qualification or issuance standards
quite to the level [of] Alaska. There are some states
with tougher standards, there are some states with
standards that aren't as strict as Alaska, but, again,
the important point is that the evidence from everyone
in these states is the same, and that is that the
permittees are handling themselves responsibly.
Number 1962
Self-defense is a fundamental right, and the right of
self-defense does not and should not stop at state
borders. As with driver's licenses, right-to-carry
permits should be honored universally. And in fact
studies have shown that crime rates drop when law-
abiding citizens have the means to provide for their
own self-protection and when criminals then know that
their next potential victim might have the means to
fight back.
MR. JUDY continued:
In 1998, SB 141 first recognized permits from other
states, and, interestingly, the same concerns were
raised, that we were going to have people coming into
the state and we were going to have problems. But
they did not materialize. In 2000, Senator Taylor had
a bill - SB 294 - that clarified and broadened the
number of states that Alaska would recognize. And for
that bill there was little or no opposition; people
were finally understanding that these people weren't
going to be a problem. Unfortunately, in the last
couple of years, the Department of Public Safety has
been unable to provide a complete and accurate listing
of all the states which Alaska recognizes.
It's also a concern of ours that the web site postings
that they do provide - the incomplete web site
postings - [don't] necessarily give the information
out, as they're required to do, to all the law
enforcement agencies in the state. And that's
important because all the law enforcement officers out
there throughout Alaska need to know which states'
permits are valid in Alaska so they can enforce the
laws. So this bill - HB 346 - and its companion - SB
242, which is coming over from the Senate - would
simply recognize all other states' permits. It
relieves the Department of Public Safety of the burden
of having to evaluate all the other states' laws, and
it will effectively notify all local law enforcement
agencies in the state that permits from any state are
valid.
Number 1866
MR. JUDY also said:
Again, regarding the concern that such a law will
require Alaska to recognize permits from states with
lower standards, there are 50 states out there; [43]
of them ... issue permits to law-abiding citizens -
some are mandatory issue and some are discretionary -
but every one of those state laws is different. Some
are tougher, some are not as tough, but the consistent
feature in every state is that permit holders are
exercising their rights responsibly. The State of
Alaska should not have any reservations about
welcoming the law-abiding citizens of other states and
honoring their permits.
One last point I want to make. If you go back to that
1994 white paper, the Department of Public Safety
pointed out then, rightfully, that all Alaskan's have
a right to carry openly in Alaska. In fact, all law-
abiding citizens, whether they're Alaskans or whether
they are visiting the state, have the right to carry
openly in Alaska. So what this bill really does is --
it make sense because anybody can carry in Alaska
openly; this gives that small percentage of the
population out there that's gone through their state's
process to be licensed to carry concealed, [the
ability] to carry concealed in Alaska. ... The NRA
obviously urges your support for this bill, and if
there are any questions, I'd be happy to respond.
REPRESENTATIVE JAMES asked: What happens with anyone from
Vermont, for example, where they're not required to have a
permit to carry concealed; how is reciprocity handled then?
MR. JUDY opined that if [HB 346/SB 242] became law, it would
only recognize people who have permits issued by other states.
Therefore, anybody from Vermont would not be able to carry in
Alaska since Vermont does not issue permits.
REPRESENTATIVE JAMES asked whether Alaskan's could carry
concealed in Vermont.
MR. JUDY said yes. He relayed that the way the Vermont law
reads is that any law-abiding citizen can carry a firearm
openly, concealed, loaded, or unloaded; "you do not need a
permit to carry in Vermont." Regardless of what state people
are from - as long as they are law-abiding citizens and don't
have any criminal intent that could later be proven - they can
carry lawfully in the state of Vermont, any way they choose.
Number 1735
REPRESENTATIVE BERKOWITZ, after noting that Mr. Judy had
indicated that the state's web site was inaccurate regarding
reciprocity, mentioned that he "had it in front" of him and that
it lists 11 states for which Alaska recognizes valid handgun
permits. He asked Mr. Judy to tell him what the inaccuracies
are.
MR. JUDY clarified: "If I said it's inaccurate, I misspoke;
what I mean is that it is incomplete." He added that there are
somewhere in the ballpark of 25 states. In fact, he recalled,
the DPS testified in the [Senate Judiciary Standing Committee]
that there are 25 states' permits which are recognized in
Alaska. Therefore, by listing only 11, 4 or 5 of which were
only added [within the last two weeks since HB 346/SB 242
started moving], the web site is not providing complete
information to all the law enforcement agencies out there
regarding which states' permits are valid in Alaska.
REPRESENTATIVE BERKOWITZ relayed that one of the concerns that
he has is not a subject-matter concern but is instead "a state's
rights" concern. He elaborated:
If Alaska sets standards, on this subject or on any
other subject, it seems to me that we have a
responsibility to ensure that visitors to this state
comply with those standards. You mentioned the
driver's licenses; I don't know exactly, but I believe
there is some national legislation about [a] uniform
driver's licenses Act, and it just seems to me that
there's a "state's rights" concern here that we
shouldn't quickly run past.
MR. JUDY suggested that that is the policy question raised by
[HB 346/SB 242]. He pointed out, however, that anybody from
another state who carries - either openly, as allowed under
existing Alaska law, or concealed, as allowed for some states'
citizens because of reciprocity - is still required to comply
with Alaska's laws. Therefore, he opined, the only change would
be that the permits of some states that may not have concealed-
weapons-permits-issuance criteria as strict as Alaska's would be
valid after the passage of [HB 346/SB 242]. Additionally, he
made the claim that permits from some states which currently
have issuance criteria that are not as strict as Alaska's are
recognized as valid by virtue of [a portion of the current law],
which says that if another state's permits are valid in Alaska,
then Alaska will recognize those permits. He surmised that that
is why some states are listed on the DPS web site even though
their issuance criteria are not as strict as those of Alaska.
Number 1565
REPRESENTATIVE JAMES asked whether [HB 346/SB 242] would require
someone who had a valid permit from another state to replace
that permit with an Alaska permit if he/she moved to Alaska.
MR. JUDY noted that [HB 346/SB 242] would delete the 120-day
limitation; thus, if somebody moved to Alaska and became an
Alaskan resident, the permit from his/her former state of
residence would be valid in Alaska until it expired. After that
permit expired, if that person wanted to continue to carry
concealed, then he/she would be required to apply for and
receive an Alaskan permit.
REPRESENTATIVE BERKOWITZ noted that persons who come to the
state "with the intent to remain and gain employment" are
required, within 90 days, to get a new driver's license. He
asked Mr. Judy whether he recommends a different scheme as
appropriate for a concealed-carry permit.
MR. JUDY said it would be a bit different if HB 346 became law.
He informed the committee that there are 25-30 states that have
laws that recognize permits from other states. Currently, only
Alaska, at 120 days, and Utah, at 60 days, have time
limitations. If [HB 346/SB 242] becomes law as it is, Texas
would recognize Alaska's law. However, Texas currently won't
enter into an agreement with Alaska due to the 120-day
limitation.
CHAIR ROKEBERG inquired as to whether that meant that a Texan
could come to Alaska, establish residency, and use their Texas
permit for infinity.
MR. JUDY answered that if [HB 346/SB 242] became law, a Texan
with a Texas concealed handgun permit could carry in Alaska. If
that Texan decided to stay in Alaska, that Texan's permit would
be valid until it expired. In response to Chair Rokeberg, Mr.
Judy confirmed that permits in Texas do have an expiration. He
recalled that the longest permit available is for five years.
Mr. Judy explained that if a person who had obtained a five-year
permit moved to Alaska, then that permit would be good for five
years. However, he felt that such a situation would be highly
unlikely. Even if such a case happened, the permit holders are
responsible individuals. People going through this permit
process, regardless of the state and issuance criteria, are not
causing problems.
Number 1321
REPRESENTATIVE BERKOWITZ noted that the permit holders should be
protected as well. The more knowledge there is regarding who
has concealed handgun permits - whether the person is a visitor
or not - the more safety would be provided for concealed handgun
permit holders.
MR. JUDY referred to the "Uniform Crime Report" put out by the
Federal Bureau of Investigations (FBI), which illustrates that
the states with most lenient gun laws have the lowest crime
rate. He recalled that the State of Vermont, which allows
anyone to carry any time, at any location, ranks 49th in crime
[statistics in the United States]. The people causing problems
aren't those that go through the process and are issued these
concealed-carry permits.
REPRESENTATIVE BERKOWITZ commented that that isn't his point,
although he tended to agree with the numbers mentioned by Mr.
Judy. However, he said, he feels that there should be some
protection afforded to those with concealed-carry permits. He
questioned whether opening [the statutes] as wide as Mr. Judy
suggests would afford that level of protection.
MR. JUDY said that he didn't understand what problem permit
holders would face if [the statutes] were opened up; it would
[merely] allow them to carry.
REPRESENTATIVE JAMES announced that she is a permit holder and
isn't afraid of anyone that enters the state with a [concealed-
carry] permit.
Number 1180
JESSE VANDERZANDEN, Executive Director, Alaska Outdoor Council
(AOC), testified via teleconference in support of HB 346. He
informed the committee that the AOC is composed of about 50
outdoor clubs as well as individual members. At least a dozen
of those clubs are gun-oriented. There are several members that
teach concealed-carry classes and have concealed-carry permits.
Many of those folks have called AOC in support of HB 346 without
solicitation from the AOC.
Number 1077
DEL SMITH, Deputy Commissioner, Department of Public Safety
(DPS), began by noting that although HB 346 would lighten DPS's
workload, he wasn't sure what [HB 346] does for Alaskans. He
questioned whether it's good public policy to allow everyone to
come to Alaska [with a concealed-carry permit] indefinitely.
Conceivably, someone from Texas or elsewhere could come to
Alaska and carry a concealed gun for five years without being
required to obtain an Alaskan permit.
MR. SMITH, in response to Chair Rokeberg, specified that 11
[states] have [reciprocity] and three [states] are pending. He
confirmed that he is in the process of officially verifying
[which states have reciprocity agreements].
Number 0965
PATTY OWEN, Alaska Chapter, Million Mom March, informed the
committee that the Million Mom March is a national grassroots
organization for commonsense gun laws and safe kids. Ms. Owen
expressed her fear that [HB 346] weakens the concealed-weapon
law, as well as all other gun-safety laws, to an all-time low.
[This legislation would] allow others to come into the state who
haven't met Alaska's training or fingerprinting standards, and
who could conceivably be teenagers. She noted that current law
requires a person to be 21 before being issued a permit, and
opined that HB 342 appears to repeal that portion of statute.
Furthermore, the lack of a time limit regarding when someone has
to apply for an Alaskan permit appears to be a big loophole.
MS. OWEN posited that allowing other people to come into Alaska
and carry concealed weapons, regardless of whether their states
have lower standards, would, in effect, weaken Alaska's
standards. She stated that she did not care whether passage of
[HB 346] lightens the DPS's workload. "I am a concerned citizen
and I feel like they should be doing their job, and its not the
right answer to repeal good safety laws just to lighten the
load; so I would just encourage some patience with what they're
doing, and [encourage] upholding Alaska's standards," she said.
It doesn't benefit Alaskan permit holders when they travel to
other states; they still depend on the laws of other states.
Therefore, she suggested, HB 346 would only benefit the
newcomers to Alaska who have permits from other states.
Number 0796
LAUREE HUGONIN, Executive Director, Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), in an effort to clarify a
couple of points, said:
As many of you know, we are not proponents of
concealed-carry but we understand the reality as we
have it here. But there are two things that I would
like to clarify. One is that sexual assault in Alaska
has not gone down since people have been allowed to
carry concealed weapons here. We remain,
unfortunately, in the top five per capita in the
nation in sexual assault, and we vacillate between
number one and number 2; I think maybe once in the
last ten years we made it down to number three, but
it's not crime that carrying concealed has had an
impact on.
There's a study on the NRA's web site that does show
several crimes where that may have had some kind of
impact in other states, and for sexual assault it only
says a 3 percent reduction, but it didn't really say
how that percentage was derived; but that's not the
case here. [There also seems to be a] notion that
hidden weapons [gives] offenders some kind of pause
about whether or not to commit the crime. In sexual
assault, most often, offenders know their victims so
they're going to know whether or not they have a
concealed-carry permit; they're probably going to know
whether or not a person has a weapon on them, and so
that's not really going to be a deterrent effect.
And then the second point was ... about [the argument
that] "well everybody can carry open." Well, okay; if
you carry a [weapon openly], I can see it, I can make
a decision about whether or not I want to be in
proximity to you and that weapon. If you're carrying
concealed, I don't have that option. So I would just
ask you to consider thoughtfully what you're passing
through, and to take into account that not everything
that's said with statistics is true for Alaska, as it
might be true in other parts of the nation, and that
you would thoughtfully consider whether or not to move
the bill from the committee. Thank you.
CHAIR ROKEBERG asked whether there have been any studies
regarding the percentages of sexual assault in relation to rural
and urban areas of Alaska.
Number 0604
MS. HUGONIN asked whether he was referring to how many of the
total number of sexual assaults might have been committed in
rural areas.
CHAIR ROKEBERG: Well, like a per capita incidence rate."
MS. HUGONIN said not that she is aware of, adding that she would
research the issue.
CHAIR ROKEBERG announced that HB 346 would be held over and that
the committee would probably take up SB 242.
MS. YUHAS, on Representative Berkowitz's driver's license
analogy, offered the comment that "driving is a privilege that
we issue a permit for, [whereas] the right to carry a firearm is
[a] constitutionally guaranteed right [that] the state has
chosen to regulate."
REPRESENTATIVE BERKOWITZ said, "Not concealed."
MS. YUHAS replied that the right to carry a weapon at all is a
constitutionally guaranteed right, whereas driving is not.
REPRESENTATIVE BERKOWITZ argued that carrying concealed is not a
constitutional right, and that the state has the ability to
regulate it.
CHAIR ROKEBERG asked how long an Alaskan concealed-carry permit
lasts.
MS. YUHAS said five years. She noted that the DPS has suggested
that HB 346 might be just for people traveling to Alaska, and,
in response, she pointed out that there are other states that
will not grant reciprocity if their permits are not honored in
Alaska. Therefore, she offered, this bill is specifically for
Alaskans so that they are able to travel to other states with
peace of mind, particularly in light of terroristic threats.
[HB 346 was held over.]
ADJOURNMENT
Number 0468
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:15 p.m.
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