03/19/2004 01:15 PM House JUD
| Audio | Topic |
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 19, 2004
1:15 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative Jim Holm
Representative Dan Ogg
COMMITTEE CALENDAR
HOUSE BILL NO. 428
"An Act relating to civil liability for acts related to
obtaining alcohol for persons under 21 years of age or for
persons under 21 years of age being on licensed premises."
- MOVED CSHB 428(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 472
"An Act relating to claims for personal injury or wrongful death
against health care providers; and providing for an effective
date."
- HEARD AND HELD
HOUSE BILL NO. 423
"An Act relating to accidents involving the vehicle of a person
under the influence of an alcoholic beverage; and providing for
an effective date."
- HEARD AND HELD
HOUSE BILL NO. 351
"An Act relating to the devices, including carbon monoxide
detection devices, required in dwellings; and providing for an
effective date."
- MOVED CSHB 351(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 244
"An Act relating to the Code of Criminal Procedure; relating to
defenses, affirmative defenses, and justifications to certain
criminal acts; relating to rights of prisoners after arrest;
relating to discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right to
representation in criminal proceedings; relating to sentencing,
probation, and discretionary parole; amending Rule 16, Alaska
Rules of Criminal Procedure, and Rules 404, 412, 609, and 803,
Alaska Rules of Evidence; and providing for an effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 428
SHORT TITLE: CIVIL PENALTY: UNDERAGE ALCOHOL PURCHASES
SPONSOR(S): REPRESENTATIVE(S) MEYER
02/04/04 (H) READ THE FIRST TIME - REFERRALS
02/04/04 (H) L&C, JUD
02/25/04 (H) L&C AT 3:15 PM CAPITOL 17
02/25/04 (H) Moved Out of Committee
02/25/04 (H) MINUTE(L&C)
02/26/04 (H) L&C RPT 5DP
02/26/04 (H) DP: CRAWFORD, LYNN, ROKEBERG,
02/26/04 (H) GUTTENBERG, GATTO
03/18/04 (H) JUD AT 1:00 PM CAPITOL 120
03/18/04 (H) Heard & Held
03/18/04 (H) MINUTE(JUD)
03/19/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 472
SHORT TITLE: CLAIMS AGAINST HEALTH CARE PROVIDERS
SPONSOR(S): REPRESENTATIVE(S) ANDERSON
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD
02/25/04 (H) JUD AT 1:00 PM CAPITOL 120
02/25/04 (H) Heard & Held
02/25/04 (H) MINUTE(JUD)
03/03/04 (H) JUD AT 1:00 PM CAPITOL 120
03/03/04 (H) Heard & Held
03/03/04 (H) MINUTE(JUD)
03/05/04 (H) JUD AT 1:00 PM CAPITOL 120
03/05/04 (H) -- Meeting Postponed to 3/16/04 --
03/16/04 (H) JUD AT 1:00 PM CAPITOL 120
03/16/04 (H) Heard & Held
03/16/04 (H) MINUTE(JUD)
03/19/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 423
SHORT TITLE: TAXICAB DRIVER LIABILITY
SPONSOR(S): REPRESENTATIVE(S) ANDERSON
02/02/04 (H) READ THE FIRST TIME - REFERRALS
02/02/04 (H) JUD
02/02/04 (H) STA REFERRAL ADDED AFTER JUD
02/09/04 (H) REFERRAL ORDER CHANGED
02/09/04 (H) STA, JUD
02/10/04 (H) STA AT 8:00 AM CAPITOL 102
02/10/04 (H) <Bill Hearing Postponed>
03/02/04 (H) STA AT 8:00 AM CAPITOL 102
03/02/04 (H) Heard & Held
03/02/04 (H) MINUTE(STA)
03/05/04 (H) STA AT 8:00 AM CAPITOL 102
03/05/04 (H) Heard & Held
03/05/04 (H) MINUTE(STA)
03/09/04 (H) STA AT 8:00 AM CAPITOL 102
03/09/04 (H) Moved CSHB 423(STA) Out of Committee
03/09/04 (H) MINUTE(STA)
03/12/04 (H) STA RPT CS(STA) NT 3DP 3NR 1AM
03/12/04 (H) DP: SEATON, HOLM, LYNN; NR: COGHILL,
03/12/04 (H) BERKOWITZ, WEYHRAUCH; AM: GRUENBERG
03/19/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 351
SHORT TITLE: CARBON MONOXIDE DETECTION DEVICES
SPONSOR(S): REPRESENTATIVE(S) GATTO, GRUENBERG
01/12/04 (H) PREFILE RELEASED 1/2/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) L&C, STA
01/21/04 (H) L&C AT 3:15 PM CAPITOL 17
01/21/04 (H) Heard & Held
01/21/04 (H) MINUTE(L&C)
01/23/04 (H) L&C AT 3:15 PM CAPITOL 17
01/23/04 (H) Moved CSHB 351(L&C) Out of Committee
01/23/04 (H) MINUTE(L&C)
01/26/04 (H) L&C RPT CS(L&C) 5DP
01/26/04 (H) DP: CRAWFORD, LYNN, GATTO, GUTTENBERG,
01/26/04 (H) ANDERSON
02/19/04 (H) STA AT 8:00 AM CAPITOL 102
02/19/04 (H) Scheduled But Not Heard
02/26/04 (H) STA AT 8:00 AM CAPITOL 102
02/26/04 (H) Moved CSHB 351(STA) Out of Committee
02/26/04 (H) MINUTE(STA)
03/01/04 (H) STA RPT CS(STA) 3DP 1DNP 3NR
03/01/04 (H) DP: GRUENBERG, SEATON, LYNN;
03/01/04 (H) DNP: COGHILL; NR: HOLM, BERKOWITZ,
03/01/04 (H) WEYHRAUCH
03/01/04 (H) JUD REFERRAL ADDED AFTER STA
03/19/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 244
SHORT TITLE: CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
04/04/03 (H) READ THE FIRST TIME - REFERRALS
04/04/03 (H) JUD, FIN
04/14/03 (H) JUD AT 1:00 PM CAPITOL 120
04/14/03 (H) Heard & Held
04/14/03 (H) MINUTE(JUD)
04/25/03 (H) JUD AT 1:00 PM CAPITOL 120
04/25/03 (H) -- Meeting Postponed --
05/07/03 (H) JUD AT 1:00 PM CAPITOL 120
05/07/03 (H) Scheduled But Not Heard
05/08/03 (H) JUD AT 3:30 PM CAPITOL 120
05/08/03 (H) Heard & Held
05/08/03 (H) MINUTE(JUD)
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
05/09/03 (H) Moved CSHB 244(JUD) Out of Committee
05/09/03 (H) MINUTE(JUD)
05/12/03 (H) JUD RPT CS(JUD) NT 1DP 1DNP 4NR
05/12/03 (H) DP: SAMUELS; DNP: GARA; NR: HOLM,
05/12/03 (H) OGG, GRUENBERG, MCGUIRE
05/13/03 (H) FIN AT 1:30 PM HOUSE FINANCE 519
05/13/03 (H) -- Meeting Canceled --
05/14/03 (H) FIN AT 8:30 AM HOUSE FINANCE 519
05/14/03 (H) Heard & Held
05/14/03 (H) MINUTE(FIN)
05/15/03 (H) FIN AT 8:30 AM HOUSE FINANCE 519
05/15/03 (H) Moved CSHB 244(JUD) Out of Committee
05/15/03 (H) MINUTE(FIN)
05/15/03 (H) FIN RPT CS(JUD) NT 2DNP 4NR 4AM
05/15/03 (H) DNP: KERTTULA, FOSTER; NR: MOSES,
05/15/03 (H) CHENAULT, HARRIS, WILLIAMS; AM: HAWKER,
05/15/03 (H) STOLTZE, BERKOWITZ, WHITAKER
05/15/03 (H) RETURNED TO JUD COMMITTEE
05/15/03 (H) IN JUDICIARY
03/19/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE KEVIN MEYER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 428.
JERRY LUCKHAUPT, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Spoke as the drafter of HB 428.
O.C. MADDEN III, Manager
Personnel and Loss Prevention
Brown Jug, Inc.
Anchorage, Alaska
POSITION STATEMENT: Answered questions with regard to Brown
Jug's use of the Anchorage ordinance mirrored in HB 428.
DALE FOX
Cabaret Hotel Restaurant & Retailers Association (CHARR)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 428, answered
questions.
ALLISON MENDEL, Attorney at Law
Alaska Academy of Trial Lawyers (AATL)
Anchorage, Alaska
POSITION STATEMENT: Testified on HB 472.
MICHAEL L. LESSMEIER, Attorney at Law
Lessmeier & Winters; Lobbyist
for State Farm Insurance Company ("State Farm")
Juneau, Alaska
POSITION STATEMENT: Testified in support of [CSHB 423, Version
I].
JIM SHINE JR., Staff
to Representative Tom Anderson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 423 on behalf of
Representative Anderson, sponsor.
LINDA WILSON, Deputy Director
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 423.
REPRESENTATIVE CARL GATTO
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as one of the prime sponsors of
HB 351.
KELLY NICOLELLO, Assistant State Fire Marshall
Central Office
Division of Fire Prevention
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Testified that the [division] is in favor
of [Version V of HB 351].
SUSAN A. PARKES, Deputy Attorney General
Central Office
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Presented the proposed committee substitute
(CS) for HB 244 on behalf of the administration.
ACTION NARRATIVE
TAPE 04-41, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:15 p.m. Representatives
McGuire, Anderson, Samuels, Gara, and Gruenberg were present at
the call to order. She noted that Representative Ogg was
excused.
HB 428 - CIVIL PENALTY: UNDERAGE ALCOHOL PURCHASES
Number 0102
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 428, "An Act relating to civil liability for
acts related to obtaining alcohol for persons under 21 years of
age or for persons under 21 years of age being on licensed
premises."
Number 0136
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor,
reminded the committee that at the last hearing on HB 428,
Conceptual Amendment 3 was left pending due to the need for
legal assistance.
Number 0245
JERRY LUCKHAUPT, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, turned to the question of why he drafted HB 428 as he
did, without having minors being sued directly [and] disallowing
recovery against anyone violating Title 4 statutes. He
explained that he drafted HB 428 after receiving a request to
follow AS 09.68.110, which is a "civil liability for
shoplifting" statute that already imposes a similar procedure
for allowing storeowners to recover civil penalties against
minors and others who shoplift. The aforementioned procedure is
identical to the one used in HB 428. He explained that he took
that approach due to the inherent problems in suing minors.
Although a minor can be sued or can sue someone else, there are
limitations. One of the limitations found under [Rule 4 of the
Alaska Rules of Civil Procedure] specifies that both the minor
and the parent or legal guardian has to be served as a condition
precedent to maintaining the suit. Furthermore, if one attempts
to sue a minor, the court has to ensure that the minor's legal
guardian defends the suit on the minor's behalf because the
interests of the minor and the parent [or legal guardian] may
differ in some situations.
MR. LUCKHAUPT pointed out that just last year, the Alaska
Supreme Court provided a decision specifying that a minor,
through a next friend or legal guardian, can sue another
individual. However, the minor can't defend through a next
friend, and therefore a legal guardian has to maintain the
defense on behalf of the minor. Mr. Luckhaupt further pointed
out that the court's decision last year specified that the
parent can't defend the minor pro se without an attorney.
Therefore, at a minimum, an attorney would have to be hired in
these cases. Moreover, a default judgment against a minor can't
be obtained in a situation in which the minor doesn't answer the
suit, because one can't assume that a minor is waiving his or
her rights to defend. Mr. Luckhaupt said he basically tried to
avoid the aforementioned problems.
REPRESENTATIVE SAMUELS surmised that the best approach for the
minor is to not be present.
Number 0552
MR. LUCKHAUPT said that although a default judgment can be
obtained, it means nothing. He informed the committee that in
Alaska one can enter into a contract with a minor, but when that
minor reaches the age of majority, he/she can void the contract
if he/she so chooses. The aforementioned is why banks won't
setup loans with minors unless the parent co-signs. Mr.
Luckhaupt observed that it seems easier to avoid the questions
surrounding minors, and just impose the penalties on 18-year-
olds or emancipated minors or the [minor's] parents. The
aforementioned is what the legislature choose to do with the
shoplifting civil penalty statute.
REPRESENTATIVE GRUENBERG commented that this isn't a
constitutional issue. Representative Gruenberg read from the
Shields v. Cape Fox Corporation case as follows:
Alaska Civil Rule 17(c) governs this issue.2 The
second sentence of this rule makes clear that while a
next friend may sue on behalf of a minor, she may not
defend a suit against a minor. Further, a next friend
cannot generally represent a minor, even as a
plaintiff, without counsel.3
As noted, [the mother], acting pro se, filed an answer
for [the child] as [the child's] next friend. Thus
[the child] was not properly represented and the trial
court should have appointed a guardian ad litem or
entered some other appropriate protective order on
[the child's] behalf pursuant to Civil Rule 17(c).
However, this error does not require reversal in this
case because [the child] turned eighteen almost a year
before trial. She became an adult after the case was
filed but before any events had occurred in pretrial
practice that might prejudice her interests. Once she
became an adult she was, in the eyes of the law,
competent to represent herself and was no longer
entitled to protection under the rule.4 Absent a
showing of prejudice resulting from her lack of
representation or protection before she turned
eighteen, the error was harmless.5
Number 0871
REPRESENTATIVE GRUENBERG read Rule 17(c) of the Alaska Rules of
Civil Procedure:
(c) Infants or Incompetent Persons. Whenever an
infant or incompetent person has a representative,
such as a general guardian, committee, conservator, or
other like fiduciary, the representative may sue or
defend on behalf of the infant or incompetent person.
An infant or incompetent person who does not have a
duly appointed representative may sue by a next friend
or by a guardian ad litem. The court shall appoint a
guardian ad litem for an infant or incompetent person
not otherwise represented in an action or shall make
such other order as it deems proper for the protection
of the infant or incompetent person.
REPRESENTATIVE GRUENBERG highlighted that the last sentence of
Rule 17(c) was interpreted by the court to preclude the next
friend from defending a suit against a minor, although the
language of Rule 17(c) doesn't specify that explicitly.
Representative Gruenberg offered his understanding of
yesterday's testimony from Mr. Madden and others that these
cases generally don't go to trial, and that the procedure
followed by licensees such as Brown Jug, Inc. ("Brown Jug"), is
well established and there hasn't really been a problem with it.
Therefore, Representative Gruenberg surmised that the cure would
be to simply say that if [a licensee] is proceeding against a
minor, the [licensee], in its written notice to the minor,
advise the minor of his or her rights under the Shields case
[and] Rule 17(c). The aforementioned should be a fairly simple
form to prepare and could be included in the notice [sent by the
licensee] that is sent to the minor as well as the minor's
parent or legal guardian, he opined.
MR. LUCKHAUPT expressed concern that what Representative
Gruenberg is proposing requests that the waiver execute some
sort of settlement agreement. However, the minor doesn't have
the capacity to execute the settlement agreement and, thus,
merely including the notice doesn't necessarily satisfy anything
because the minor still doesn't have a right to execute the
settlement or waive any rights the minor might have.
Furthermore, the minor doesn't necessarily know what those
rights are.
REPRESENTATIVE GRUENBERG surmised, then, that the procedure
being practiced in Anchorage for some time is technically
illegal.
MR. LUCKHAUPT said it could be problematic.
REPRESENTATIVE GRUENBERG pointed out that it seems that no one
has raised that as an issue. With regard to waiving any rights,
the party who is really waiving his or her right to proceed is
the [licensee]. The problem would only arise if the [licensee]
brought a suit despite the minor going through the process.
Representative Gruenberg said that [his proposal] would ratify
something that has been in place for some time.
Number 1201
REPRESENTATIVE SAMUELS pointed out that there is a difference
between a minor under the age of 18 and an individual who is
considered a minor for the drinking age. Representative Samuels
said he assumed that the "Hey Mister" group outside the liquor
store are 18- to 20-year-olds rather than 14-year-olds. "Are we
including most of them?" he asked. He also asked whether the
Anchorage ordinance provides a remedy for those minors under
age 18 as opposed to the "under 21 years of age" minors.
REPRESENTATIVE MEYER relayed his understanding that Mr.
Luckhaupt basically mirrored what was in the Anchorage ordinance
in HB 428. Representative Meyer said he didn't believe the
Anchorage ordinance addresses what Representative Samuels is
discussing. Representative Meyer commented that if he were
Brown Jug and a state law became too complicated, he would just
use the Anchorage ordinance. Representative Meyer posited that
most of those being [arrested] by Brown Jug are over age 18.
REPRESENTATIVE GRUENBERG asked whether Brown Jug exclusively
targets those who are over age 18.
Number 1265
O.C. MADDEN III, Manager, Personnel and Loss Prevention, Brown
Jug, Inc. ("Brown Jug"), responded that the youngest person
Brown Jug has dealt with was 15 years of age. He relayed that
for all the reasons stated by [Mr. Luckhaupt], Brown Jug doesn't
enter into any written agreements with a minor under the age of
18; rather, Brown Jug deals strictly with the parents. He
explained that a letter is sent to the minor, who must have
his/her parent's involvement.
REPRESENTATIVE GARA recalled reading an article that specified
that Brown Jug has tried to use Anchorage's ordinance about 900
times since 1998, and inquired as to why the statute is
necessary.
MR. MADDEN answered that after the article ran, he received
calls from licensees in other areas of the state who would like
to do the same thing, but they can't because there is no civil-
penalty provision in place that would allow them to utilize the
same program. Mr. Madden emphasized that this is an effective
tool that [Brown Jug] would like to see replicated throughout
the state.
Number 1383
REPRESENTATIVE GRUENBERG [withdrew Conceptual Amendment 3]. He
then turned attention to page 1, line 14, and asked if this is
already existing language or was developed by Mr. Luckhaupt.
MR. LUCKHAUPT specified that he used the language from AS
09.68.110 and then added the provisions from the Anchorage
ordinance.
Number 1477
REPRESENTATIVE GRUENBERG pointed out that on page 2, line 1, the
language "by first class mail" seems to be misplaced.
Therefore, he moved that the committee adopt Amendment 4, as
follows:
Page 2, line 1:
Delete "by first class mail"
Page 1, line 14, after "send":
Insert ", by first class mail,"
CHAIR McGUIRE asked whether there were any objections to
Amendment 4. There being none, Amendment 4 was adopted.
REPRESENTATIVE GRUENBERG asked if the Department of Law is the
most appropriate department to promulgate the regulations for
this.
MR. LUCKHAUPT answered that this is similar to the procedure in
AS 09.68.110 and the Department of Law is the department
identified in that statute.
REPRESENTATIVE GRUENBERG offered his belief that the Department
of Law doesn't generally promulgate regulations for the liquor.
REPRESENTATIVE MEYER remarked that since this legislation deals
with civil law it would seem appropriate that the Department of
Law promulgate the regulations.
MR. LUCKHAUPT explained that he specified the Department of Law
because the procedure is basically the same [as the procedure
used with shoplifting] and doesn't have anything to do with the
intricacies of liquor licenses or alcohol and beverage
management in Alaska. He said the regulations [for shoplifting]
and [under age solicitation of an alcoholic beverage] should
basically be identical.
REPRESENTATIVE GRUENBERG expressed the need to check with [the
Department of Law] on that. He then turned attention to page 2,
line 5, and suggested that "that" should be "a".
MR. LUCKHAUPT answered that "a" would be acceptable.
Number 1625
REPRESENTATIVE GRUENBERG moved that the committee adopt
Amendment 5, as follows:
Page 2, line 5:
Delete "that"
Insert "a"
CHAIR McGUIRE asked whether there were any objections to
Amendment 5. There being none, Amendment 5 was adopted.
REPRESENTATIVE GARA asked whether the existing statute regarding
imposing a fine against shoplifters and sending that fine to the
business that was shoplifted relates to all businesses.
MR. LUCKHAUPT answered that it applies to all businesses. He
specified that it isn't a fine but rather a civil penalty.
REPRESENTATIVE GARA asked if he is correct that since the
existence of the Anchorage ordinance, Brown Jug has attempted to
impose these fines in about 900 cases.
MR. MADDEN replied, "Nine hundred of the fake ID cases, yes."
In further response to Representative Gara, Mr. Madden specified
that since Anchorage's ordinance has been in effect, Brown Jug
has been able to [impose fines] in 20 cases. With regard to
those cases, Mr. Madden said he didn't believe [that the fine]
has been more than $300. Most everyone has signed up for the
diversion program. Mr. Madden said he couldn't provide the
committee with an estimate on the amount of fines collected from
fake IDs because those are difficult to collect on due to the
fact that fraudulent information is used. He said he didn't
believe that the number of fake ID cases Brown Jug has collected
on isn't a high number and, furthermore, many of the collections
are negotiated down. In further response to Representative
Gara, Mr. Madden reiterated that with such cases, virtually all
attended the diversion program, but couldn't estimate how many
of the fake ID cases resulted in the young person attending the
diversion program.
Number 1707
REPRESENTATIVE GARA asked whether [Brown Jug] has collected more
revenue, in the form of fines, than the expenses for enforcement
and the diversion program.
MR. MADDEN relayed that on a $300 diversion program, the
employee receives a $250 bonus, there are a couple of hours of
administrative time, and there are postage and filing costs.
And before one reaches that point, two to three hours, at
minimum, are spent by security personnel involved in the
situation. He remarked that this can be a fairly expensive
proposition to do. Part of the reason the civil penalty was
used was to help some of the smaller operators be able to afford
security services that they wouldn't otherwise be able to
utilize.
REPRESENTATIVE GARA said that he has no problem imposing a fine
if the money is going to education, diversion, or treatment.
However, he opined, it is problematic if the companies levying
the fines were going to merely keep the money. Therefore, he
had suggested obtaining a commitment from the members of the
Cabaret Hotel Restaurant & Retailers Association (CHARR) that
they would endeavor to use the money for the aforementioned
purposes. However, he noted, the CHARR representative said that
there are too many members to do so and it would be too
difficult to obtain a commitment. Representative Gara recalled
that since a voluntary commitment couldn't be accomplished, his
suggestion is to place it in statute.
Number 1927
DALE FOX, Cabaret Hotel Restaurant & Retailers Association
(CHARR), pointed out that even if the CHARR Board took such a
position, CHARR can't bind all of its members. Furthermore,
CHARR can't bind its nonmembers who make up a significant number
of licensees. Mr. Fox said that if the intent [of the
committee] is for the money to be used for education, diversion,
or treatment, then placing language to that effect in statute is
probably appropriate.
CHAIR McGUIRE asked if it would be possible for Mr. Fox to
generate a letter stating CHARR's position that it would
encourage it members to put as much of the money toward alcohol
treatment, education, and diversionary efforts as possible.
MR. FOX agreed that such could be provided. If this legislation
passes, he opined, there will probably be more information
provided with regard to how well the program has worked in
Anchorage. Mr. Fox said that CHARR will definitely have an
outreach program to encourage this program because there is the
desire to have the same good results that Brown Jug and Chilkoot
Charlie's are seeing.
Number 2018
CHAIR McGUIRE announced that she is considering offering an
amendment that would include the following language: "The
$1,000 civil penalty may be reduced by a licensee if the
defendant attends an alcohol treatment program approved by the
licensee." Although it's not as strong as what she and
Representative Gara have discussed, it would at least provide
statutory intent.
MR. MADDEN advised against such an amendment because the $1,000
hammer seems to get offenders in the program. Mr. Madden stated
his preference for the [punishment] to be either appearing in
court and paying $1,000 or signing up for treatment. If these
[offenders] believe the process can be drawn out and made
difficult [for the business], that's what will occur. He
reiterated that the reason he approached Representative Meyer
regarding HB 428 is that other licensees have a strong desire to
replicate what Brown Jug is doing, and remarked that Akeela,
Inc. ("Akeela"), is interested in partnering with Brown Jug on
this.
CHAIR McGUIRE remarked that that seems fair, and commented that
if a future legislature saw abuses in that perhaps treatment
wasn't being sought, it could simply change the statute.
Therefore, Chair McGuire announced that she [wouldn't pursue]
that idea.
Number 2143
REPRESENTATIVE GARA announced that an amendment of his would
essentially require that if liquor licensees are going to take
advantage of the fine money, that they do essentially what Brown
Jug is doing, and that taking advantage of the fine program
merely to make money wouldn't be allowed. Representative Gara
related his understanding from Mr. Madden that Brown Jug doesn't
make money off the program. Therefore, he proposed [adding]
language specifying that if [a licensee] recovers the fine, a
form has to be submitted to the Alcoholic Beverage Control (ABC)
Board confirming that at least 75 percent of the net proceeds,
after deductions for enforcement expenses, go towards alcohol
education, treatment, or diversion. He asked if the
aforementioned would be problematic.
MR. FOX said he didn't know how Representative Gara's proposal
would work. Although the proposal might work in aggregate, on
an individual basis it would be a nightmare. He posed a
situation in which the offender decides to take the [licensee]
to court and ultimately [the licensee] loses $5,000 in the
process; the [licensee] would already be in the hole. Although
Mr. Fox said he agrees with the intent of Representative Gara's
proposal, he offered that it seems problematic.
MR. MADDEN said he would be opposed to Representative Gara's
proposal because he believes that it would cause licensees, who
might otherwise participate, not to participate. He explained
that the situation now is one in which people are parking in
parking lots near a liquor store and sending an adult in to
purchase alcohol for them. Under the current [law], there is
really no incentive for a licensee to police those areas because
it's not illegal to sell alcohol to a sober adult. This
legislation would encourage people to pay more attention around
their establishment. Additionally, this is an expensive process
because it involves trained security personnel. Furthermore,
many of the arrests made by [Brown Jug] are felony arrests
involving possession of narcotics, violation of parole or
release, and in some cases [these individuals] are carrying
guns. Mr. Madden stated that there is a certain amount of risk
in doing this, specifically with regard to workers' compensation
exposure. Mr. Madden remarked that Representative Gara's
proposal would "kill the process," and reiterated his
opposition.
REPRESENTATIVE GARA commented that there is no doubt that Mr.
Madden is doing good things with the money being raised with the
fine structure. However, he opined, there is also no doubt that
this would be an easy way for some liquor establishments to
merely make money from it, adding that he didn't want to help
facilitate such. The problem with drafting statutes is if they
aren't drafted narrowly, as is the case in this legislation, the
behavior not wanted is encouraged in addition to the desired
behavior.
MR. MADDEN highlighted that if a store is collecting this civil
penalty every chance possible, then the store will gain a
reputation such that people will know not to go there and
attempt to purchase alcohol for minors. The aforementioned
would be the case even if the store keeps the money from the
fines collected.
TAPE 04-41, SIDE B
Number 2364
REPRESENTATIVE ANDERSON offered his belief that the bottom line
is that this is about deterrence rather than making money.
REPRESENTATIVE GARA announced that he isn't going to introduce
his proposal as an amendment. However, he pointed out, the
entire deterrence [argument] doesn't work because [Brown Jug]
has levied this fine 900 times and still people come to his
business [and attempt to purchase alcohol for minors].
Number 2322
REPRESENTATIVE SAMUELS moved to report HB 428, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes.
Number 2312
REPRESENTATIVE GARA objected and explained that he was doing so
in order to encourage the sponsor to develop language that
perfectly settles the problem.
Number 2304
A roll call vote was taken. Representatives Gruenberg, Samuels,
Anderson, and McGuire voted in favor of reporting HB 428, as
amended. Representative Gara voted against it. Therefore, CSHB
428(JUD) was reported out of the House Judiciary Standing
Committee by a vote of 4-1.
HB 472 - CLAIMS AGAINST HEALTH CARE PROVIDERS
Number 2272
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 472, "An Act relating to claims for personal
injury or wrongful death against health care providers; and
providing for an effective date."
CHAIR McGUIRE reminded the committee that Amendment 2, labeled
23-LS1743\A.3, Bullock, 3/10/04, was left pending at the March
16, 2004, hearing. Amendment 2 read:
Page 2, line 22, following "death.":
Insert "The limits on damages in this subsection
do not apply if the personal injury or wrongful death
was the result of gross negligence or reckless or
intentional misconduct."
Page 2, line 25, following "judgment":
Insert "unless the personal injury or wrongful
death was the result of gross negligence or reckless
or intentional misconduct"
REPRESENTATIVE ANDERSON, sponsor of HB 472, said he maintains
his objection.
Number 2216
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of the adoption of Amendment 2. Representatives
Samuels, Anderson, and McGuire voted against it. Therefore,
Amendment 2 failed by a vote of 2-3.
CHAIR McGUIRE turned attention to Amendment 3, labeled 23-
LS1743\A.4, Bullock, 3/10/04, which read:
Page 3, lines 19 - 30:
Delete all material.
Renumber the following bill sections accordingly.
Number 2155
REPRESENTATIVE GARA moved that the committee adopt an amendment
to Amendment 3, which changed it to read as follows:
Page 3, lines 20 - 25:
Delete all material.
Renumber the following bill sections accordingly.
CHAIR McGUIRE announced that the amendment to Amendment 3 was
adopted. [Therefore, Amendment 3, as amended, was before the
committee.]
REPRESENTATIVE GARA recalled that some of the informed consent
language is necessary to address the O'Malley case regarding
telephonic advice given to patients. Those amendments to the
informed consent statute are contained in Section 3 and Section
4, subsection (d), of HB 472. Representative Gara specified
that he only objects to Section 4, subsection (c), and
highlighted that there have been no objections to the current
law. The [current law] specifies that the advice that should be
given to a patient is that which would be given in a like
circumstance regarding the risks and treatment options, which,
he posited, is the reasonable patient standard. However,
Section 4, subsection (c), changes that to the reasonable
physician standard such that it would be the type of advice the
physician in that community would normally provide.
Representative Gara opined that the information should be given
such that the average patient can understand treatment options
and risks. Section 4, subsection (c), seems to be overkill, he
remarked.
REPRESENTATIVE ANDERSON objected to Amendment 3, as amended. He
said he prefers the reasonable health care provider standard.
Part of the reason for the legislation is [to provide]
predictability, whether in litigation or in insuring.
CHAIR McGUIRE recalled that there are states that use the
reasonable physician in the community standard.
REPRESENTATIVE GRUENBERG turned to the first sentence in Section
4, subsection (c), and asked Representative Gara if that
sentence could be retained.
REPRESENTATIVE GARA said he had no problem with retaining the
first sentence in Section 4, subsection (c), although he relayed
his belief that the first sentence merely repeats what the
current statute already says.
Number 1987
REPRESENTATIVE ANDERSON specified that the first sentence of
Section 4, subsection (c) is written in conjunction with the
second sentence. He posed an example of an individual with a
cut finger asking the physician whether he or she should go to
the emergency room. If only the first sentence of Section 4,
subsection (c), was kept, the physician would have to instruct
the patient that in the worst case, the finger could get
gangrene and would have to be cut off if the individual didn't
go to the emergency room. The physician would have to specify
that he or she couldn't provide the answer over the telephone.
The second sentence is an imperative connection because it
states that typically the healthcare community would inform the
patient that although treatment seems necessary, the physician
would say that he or she doesn't foresee other problems.
REPRESENTATIVE GRUENBERG posed a situation in which Amendment 3,
as amended, is adopted and asked if the first sentence would
continue to make sense.
REPRESENTATIVE ANDERSON said that he defers to the opinion of
the health care providers who feel that this language [in
Section 4, subsection (c)] would help.
CHAIR McGUIRE opined that as to Representative Gruenberg's
question of whether the first sentence makes any difference, it
doesn't.
REPRESENTATIVE GARA disagreed, saying there is a problem with
the first sentence of Section 4, subsection (c). He explained
that currently physicians are required to inform a patient of
all risks he/she believes the patient would want to know about.
However, the first sentence of Section 4, subsection (c),
specifies that physicians only have to inform patients of risks
that would cause serious bodily harm, which is drastically
narrower. Representative Gara said he believes that a physician
should inform a patient of the risks of moderate bodily harm as
well as minor bodily harm. He specified that he didn't like the
fact that the physician now only has to discuss risks of death
and serious bodily harm.
REPRESENTATIVE ANDERSON interjected that [Amendment 3, as
amended] provides too much latitude and "opens up where lawsuit
happy people can say, 'Wow, you didn't go to minor levels, or
middle levels, or small levels,' and I think that's ridiculous
and that's the whole point of the bill." He highlighted that
the state is losing insurance companies because there is too
much latitude for a patient to say that he or she wasn't
completely informed. The aforementioned places an unfair onus
on the physician, he concluded.
REPRESENTATIVE GARA pointed out that such a level of onus isn't
in the current statute.
Number 1819
CHAIR McGUIRE recalled the O'Malley case from which arose a
broad, philosophical debate regarding the amount of information
a physician should be liable for giving to someone. She
recalled that the discussion was that this is an area ripe for
lawsuits. Chair McGuire turned to AS 09.55.556, which she
characterized as fairly broad. She highlighted AS 09.55.556(a),
which read:
(a) A health care provider is liable for failure to
obtain the informed consent of a patient if the
claimant establishes by a preponderance of the
evidence that the provider has failed to inform the
patient of the common risks and reasonable
alternatives to the proposed treatment or procedure,
and that but for that failure the claimant would not
have consented to the proposed treatment or procedure.
CHAIR McGUIRE explained that [Section 4, subsection (c)] narrows
it, and emphasized that it refers to the "most common serious
complications that may occur". She said she believes the
aforementioned to be reasonable, and emphasized that this
legislation attempts to reign in the exposure that physicians
have, "that if something happens that is out of the ordinary,
that was not disclosed, that ... [the physician is] not going to
be liable for it." She offered her understanding that case law
already recognizes the following: health care providers have a
statutory duty to posses the knowledge and skill of [an]
ordinary provider unless they're a specialist, in which case,
they have the duty to possess knowledge and skill of an ordinary
specialist. She then turned to the second sentence of Section
4, subsection (c), and pointed out that the language "a skilled
health care provider of the same or reasonably similar
specialty" refers to both the expert and the generalist. The
second sentence also refers to "under similar circumstances",
which would be the community standard. Chair McGuire reiterated
that this is being narrowed and made to be easily understood by
physicians and medical malpractice providers so that there isn't
a range of exposure.
CHAIR McGUIRE pointed out that Section 4, subsection (d),
resulted from the O'Malley case. As a result of the [O'Malley
case], physicians are essentially being told that no matter the
possibility, the patient should go to the emergency room. If
the aforementioned happens, she remarked, it will cost Alaskans
a lot of money.
REPRESENTATIVE GRUENBERG asked if the definition of health care
provider would include pharmacists and health aides in villages.
Number 1559
CHAIR McGUIRE turned attention to the definition section under
AS 09.55.560, which read:
(1) "health care provider" means an acupuncturist
licensed under AS 08.06; an audiologist or speech-
language pathologist licensed under AS 08.11; a
chiropractor licensed under AS 08.20; a dental
hygienist licensed under AS 08.32; a dentist licensed
under AS 08.36; a nurse licensed under AS 08.68; a
dispensing optician licensed under AS 08.71; a
naturopath licensed under AS 08.45; an optometrist
licensed under AS 08.72; a pharmacist licensed under
AS 08.80; a physical therapist or occupational
therapist licensed under AS 08.84; a physician or
physician assistant licensed under AS 08.64; a
podiatrist; a psychologist and a psychological
associate licensed under AS 08.86; a hospital as
defined in AS 18.20.130, including a governmentally
owned or operated hospital; an employee of a health
care provider acting within the course and scope of
employment; an ambulatory surgical facility and other
organizations whose primary purpose is the delivery of
health care, including a health maintenance
organization, individual practice association,
integrated delivery system, preferred provider
organization or arrangement, and a physical hospital
organization;
REPRESENTATIVE GRUENBERG opined that the standards set in one
profession will eventually leech over to other professions. He
explained that he wanted to be fair to both the injured person
and those in the profession. He noted that although he
generally is very supportive of the plaintiff's bar, he
expressed concern with eliminating this provision.
Number 1460
ALLISON MENDEL, Attorney at Law, Alaska Academy of Trial Lawyers
(AATL), testified that as an attorney and a consumer of health
care, she is having difficulty understanding why it's important
to meet the health care providers' expectations about [this].
This is about injured persons, and therefore one has to assume
that there is an injured person to begin with. Ms. Mendel
asked, "What difference does it make what information the doctor
(indisc.) to be giving?" She highlighted that nothing in
current law or this legislation specifies that the patient has
to be informed of every possible, remote consequence of the
treatment. The current law specifies that the patient has to be
given enough information so that a reasonable patient can make a
decision. "If the reasonable patient doesn't get enough
information to make a decision, how could they be deciding," she
asked. Ms. Mendel indicated her belief that the lawsuits that
allegedly have been won by patients as a result of the physician
providing obscure and "useless" information don't exist.
CHAIR McGUIRE stated that one of the things that physicians look
at when determining a place to practice is the legal climate.
Trying to envision what every single patient would consider to
be reasonable or unreasonable [information] is outrageous, she
remarked.
MS. MENDEL interjected, "That's ... not the reasonable person
standard; ... it's an objective reasonable person, not every
individual patient."
CHAIR McGUIRE opined that physicians become as trained as
possible with regard to the most common side effects, risks, et
cetera, and so [informing the patient of] the aforementioned is
reasonable.
CHAIR McGUIRE reminded the committee that before it is the
question of whether to adopt Amendment 3, as amended. [Text
provided previously.]
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of the adoption of Amendment 3, as amended.
Representatives Samuels, Anderson, and McGuire voted against it.
Therefore, Amendment 3, as amended, failed by a vote of 2-3.
Number 1257
REPRESENTATIVE GARA moved that the committee adopt Amendment 4,
a handwritten amendment, which read [original punctuation
provided]:
Delete at p 3 line 22
"serious bodily" and "most"
Delete at line 23, "serious"
and insert at line 22 the word "risks" after "common"
REPRESENTATIVE ANDERSON objected.
REPRESENTATIVE GARA opined that a physician has the duty to
inform a patient of common risks, not just the most common
risks. He said he believes that Amendment 4 doesn't request
physicians to do anything other than what they already do.
Furthermore, physicians [should] always inform the patient of
possible risks of harm. He offered his belief that the
physician's duty shouldn't be limited to risks of serious bodily
harm. If the harm is common, then the patient should be
informed. The lynchpin is the word "common".
REPRESENTATIVE GRUENBERG pointed out that the language being
inserted on page 3, line 22, after "common" should be "risks
and" rather than "risks". He offered the above as an amendment
to Amendment 4. There being no objection, Amendment 4 was
amended as specified.
REPRESENTATIVE SAMUELS asked whether there is a definition of
"serious bodily harm". He opined that changing the language to
refer to merely "harm" results in two lawyers arguing the case.
Representative Samuels suggested bifurcating the motion to
[adopt] Amendment 4, [as amended], because he is concerned with
the deletion of "serious bodily".
REPRESENTATIVE GARA clarified that [Amendment 4, as amended]
wouldn't require the physician to disclose all possible harms
because the term "common" limits it. Therefore, the physicians
have to advise the patients of a small world of common risks and
harms. Representative Gara said that "serious bodily harm"
isn't defined anywhere [in statute]. At some point, the matter
goes before a jury and a physician is required to live up to the
standard.
REPRESENTATIVE SAMUELS pointed out that with the adoption of
Amendment 4, as amended, the language on page 3, lines 21-22,
will, in part, read "shall disclose a known risk of death or
harm". There's always a risk of harm, he remarked.
REPRESENTATIVE GARA said that there could be a compromise by
leaving in the language "serious" and deleting "bodily" such
that the language would read "shall disclose a known risk of
death or serious harm".
CHAIR McGUIRE expressed concern that there are many serious
harms and it seems that referring to the body is important if
it's something that a physician is doing to a patient's body.
She noted that she agrees with eliminating the language "most"
from page 3, line 22.
Number 0967
REPRESENTATIVE GARA agreed to leave in the language "serious
bodily" on page 3, line 22. Therefore, he moved to further
amend Amendment 4, as amended, such that it would read as
follows:
Delete at p 3 line 22
"most"
Delete at line 23, "serious"
and insert at line 22 the words "and risks" after
"common"
CHAIR McGUIRE asked whether there were any objections to the
second amendment to Amendment 4, as amended. There being none,
the second amendment to Amendment 4, as amended, was adopted.
REPRESENTATIVE GRUENBERG requested that Amendment 4, as amended,
be divided. [No objection was heard, and so Amendment 4, as
amended, was treated as divided.]
Number 0913
REPRESENTATIVE GARA moved that the committee adopt Amendment 4A,
which read:
Delete at p 3 line 22
"most"
CHAIR McGUIRE asked whether there were any objections to
Amendment 4A. There being none, Amendment 4A was adopted.
Number 0891
REPRESENTATIVE GARA moved that the committee adopt Amendment 4B,
which read:
Delete at line 23, "serious"
and insert at line 22 the words "and risks" after
"common"
REPRESENTATIVE ANDERSON objected. He indicated that he could
accept the deletion of "serious" from page 3, line 23, although
he was uncomfortable with the term "risks".
Number 0778
REPRESENTATIVE GARA moved that the committee adopt an amended
Amendment 4B, as follows:
Delete at [page 3], line 23, "serious"
CHAIR McGUIRE, after determining that there were no objections
to such, announced that Amendment 4B [as amended] was adopted.
Number 0741
REPRESENTATIVE GRUENBERG moved that the committee adopt
[handwritten] Amendment 5A and Amendment 5B, two handwritten
amendments on one page, which read:
(A) page 3 line 22 after "and" insert "clearly"
(B) page 3 line 26 after "advice" insert "clearly"
REPRESENTATIVE GRUENBERG explained that Amendment 5A would mean
that [the physician] would "clearly explain". He specified that
he was referring to an oral explanation.
REPRESENTATIVE ANDERSON objected, and said the assumption is
that it is clear when a physician [informs] a patient. He
opined that the legislation is good as written, since the word
"clearly" could be inserted in almost every provision of
proposed legislation.
CHAIR McGUIRE opined that such would be part of the fact-finding
mission of the jury. If it's alleged that [the physician]
didn't disclose [possible risks and complications], part of the
[patient's argument] would be [the patient] saying that he or
she didn't understand the physician, or that the information was
presented in a lengthy document, or that the patient didn't
understand because he or she spoke Spanish. Chair McGuire
offered her belief that [adding the proposed language] is
unnecessary.
REPRESENTATIVE GRUENBERG asked whether, if the above-mentioned
factual circumstances were presented, the jury should be able to
make an award to the plaintiff.
REPRESENTATIVE ANDERSON said he didn't believe that someone
would make the argument that the physician wasn't obligated to
be clear because the statute doesn't include the "clearly"
language. Although he agreed that this is a valid point, he
said he didn't believe such language should be included in the
statute.
Number 0500
REPRESENTATIVE GRUENBERG clarified that he didn't want someone
to be able to say that an average physician or professional
would have understood the information, because the patient is
the one who must have understood the information. He expressed
hope that the intent of the legislation is that a reasonable
person in the plaintiff's position should have been able to
understand the information. The aforementioned should be the
standard, he opined.
REPRESENTATIVE ANDERSON disagreed and opined that [the language]
is unnecessary. He offered his belief that it's already the
case that physicians are already clear when giving instructions.
REPRESENTATIVE GRUENBERG asked if the intent of the legislation
is that the explanation should be understandable to a reasonable
person in the plaintiff's situation at the time the advice was
given. He opined that the aforementioned should be the
standard.
REPRESENTATIVE ANDERSON again opined that the proposed
additional language is unnecessary.
REPRESENTATIVE GRUENBERG clarified that he's trying to determine
what the standard should be, and whether the language referring
to that standard is clear.
REPRESENTATIVE ANDERSON said that the standard being used is
what a health care provider would determine as reasonable. The
health care provider standard, he opined is clear without the
additional language.
REPRESENTATIVE GRUENBERG offered his understanding that
Representative Anderson is saying that the standard should be
what a health care provider would understand.
Number 0222
REPRESENTATIVE ANDERSON pointed out that the legislation
specifies that the health care provider "shall disclose a known
risk of death or serious bodily harm and explain the common
complications that may occur." Furthermore, the explanation
would occur under the standard of another health care provider
of that industry. The aforementioned is sufficient, he again
opined.
CHAIR McGUIRE pointed out that other parts of the law factor
into this. The problem with a yes answer to Representative
Gruenberg's question, she opined, is that there could be the
unintended consequence of adopting Representative Gara's
amendment, which would shift [the law] to the reasonable patient
standard.
REPRESENTATIVE SAMUELS remarked that [the committee] would want
the patient to understand the risks. However, he agreed with
Representative Anderson's wanting to avoid a situation in which
someone would be sued because the person charged that the
information wasn't clearly relayed.
REPRESENTATIVE GRUENBERG said he wanted it to be known that the
intent [tape changes midspeech].
TAPE 04-42, SIDE A
Number 0001
REPRESENTATIVE GRUENBERG continued, "... is to be reasonably
understandable."
REPRESENTATIVE GARA said he agrees that the committee wants to
ensure that the information the physician provides is reasonably
understandable and, therefore, perhaps the language doesn't need
to be changed. However, he surmised that Representative
Gruenberg is being cautious because of the concern of a contrary
ruling from a court, since "clearly" was already implied in
existing law. The existing law specifies that "we want the
information to be given so that a reasonable patient could
understand it." However, that language has been [removed], and
therefore there is the implication that "we" don't care whether
a reasonable patient would understand it.
REPRESENTATIVE GARA noted that Representative Gruenberg proposes
leaving in the aspect of ensuring that it's clear to a patient.
Although he said he understood that to be the intent, he didn't
believe it would be harmful to make it clearer in the statute.
Representative Gara recalled that he and Representative Samuels
go back and forth on the matter of whether to deny someone a
right so that no one can file a frivolous claim or whether to
give someone a right so that both people with valid claims and
with invalid claims can pursue their rights. Representative
Gara opined that it's bad policy to deny people rights on the
possibility that someone might file a frivolous claim.
Therefore, he announced his support of [Amendments 5A and 5B].
Number 0153
REPRESENTATIVE GRUENBERG withdrew Amendments 5A and 5B.
CHAIR McGUIRE explained that the standard is being changed to a
health care provider standard so that a health care provider can
be assured with regard to what he or she is expected to inform.
The [information] isn't just from what the physicians learned in
medical school, but also includes "what a skilled health care
provider would know" language. She highlighted that the
"informing" language contains some insight because it means that
the intent is for the patient to be informed, not just be handed
or given the information, about common complications.
REPRESENTATIVE GRUENBERG noted that he concurs with Chair
McGuire's comments. He asked if the sponsor has the same
understanding as [Chair McGuire].
REPRESENTATIVE ANDERSON replied yes.
Number 0297
REPRESENTATIVE GARA moved that the committee adopt Amendment 6,
labeled 23-LS1743\A.5, Bullock, 3/16/04, which read:
Page 2, following line 27:
Insert a new subsection to read:
"(g) The limitation on damages under (d) of this
section shall be adjusted by the administrative
director of the Alaska Court System on October 1 of
each year, calculated to the nearest whole percentage
point between the index for January of that year and
January of the prior year according to the Consumer
Price Index for all urban consumers for the Anchorage
metropolitan area compiled by the Bureau of Labor
Statistics, United States Department of Labor. The
administrative director of the Alaska Court System
shall provide notification of a change in the
limitation of damages to the clerks of court in each
judicial district of the state. The court shall
adjust the award for noneconomic damages under this
subsection and (e) of this section, if necessary,
before the entry of judgment."
REPRESENTATIVE GARA said that the damage limits for this
legislation seem to be acceptable. However, he didn't want what
happened in California to happen in Alaska. He informed the
committee that in 1975, [California decided that] the amount
someone should recover for noneconomic damages should be
$250,000, which hasn't changed in 30 years. Therefore, if
California's $250,000 limit were inflation adjusted, it might
sum upwards of $600,000 to $700,000 today. Every year people
are given less and less damages. Representative Gara opined
that the committee should do what is essentially going to be
done during the common course of litigation. He explained that
both sides will hire an economist, who will perform future
inflationary projections. He suggested that the damage limit
should be adjusted upwards for inflation so that the legislature
wouldn't have to revisit this legislation each year. By lagging
behind inflation, California's law specifies that the worth of
someone's ability to walk, to hold his or her child, et cetera
is worth $13.69 a day in today's dollars. Representative Gara
said that California should've inflation-proofed [noneconomic
damages], and therefore that's what he wanted to do with HB 472.
REPRESENTATIVE ANDERSON stated that he didn't like the "$13.69 a
day" as a matter of interpretation. Although he said he
understands the argument, he didn't support the amendment
increasing the cap because it would defeat the purpose for
sponsoring the legislation. He opined that [Amendment 6] seems
to lend itself to Representative Gara's first amendment
expanding the caps and, thus, he disagrees with [Amendment 6].
Number 0559
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of the adoption of Amendment 6. Representatives
Samuels, Anderson, and McGuire voted against it. Therefore,
Amendment 6 failed by a vote of 2-3.
The committee took an at-ease from 3:00 p.m. to 3:40 p.m.
Present at the call back to order were Representatives McGuire,
Anderson, Samuels, and Gruenberg.
Number 0653
REPRESENTATIVE ANDERSON moved that the committee rescind its
committee's action, on 3/16/04, in the adopting Amendment 1,
labeled 23-LS1743\A.1, Bullock, 3/10/04, which read:
Page 2, line 19, following "$250,000":
Insert ", except that, in the case of severe
permanent physical impairment or severe disfigurement,
the damages may not exceed $1,000,000. The limit on
damages applies"
Page 2, line 25:
Delete "$250,000"
Insert "the maximum amount allowed under (d) of
this section"
REPRESENTATIVE GRUENBERG predicted that he would be the only one
opposing this motion. He posited that HB 472 won't be moved
today and will be available at the first opportunity [when] all
seven members of the committee will be present, with no one
being excused from the vote. He requested the ability to be
able to re-offer Amendment 1[A.1]. He asked if the sponsor is
agreeable to that.
REPRESENTATIVE ANDERSON said that he couldn't guarantee all
seven members would be present at that time.
Number 0788
A roll call vote was taken. Representatives Samuels, Anderson,
McGuire voted in favor of the motion to rescind the committee's
action, on 3/16/04, in adopting Amendment 1[A.1].
Representatives Gruenberg voted against it. Therefore, the
motion to rescind the committee's action in adopting Amendment
1[A.1] passed by a vote of 3-1.
CHAIR McGUIRE announced that HB 472 would be held over.
HB 423 - TAXICAB DRIVER LIABILITY
Number 0823
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 423, "An Act relating to accidents involving the
vehicle of a person under the influence of an alcoholic
beverage; and providing for an effective date."
Number 0830
REPRESENTATIVE ANDERSON, sponsor, paraphrased from the following
prepared statement [original punctuation provided]:
House Bill 423 is a "Good Samaritan" bill for taxicab
operators who transport intoxicated persons or who
drive an intoxicated person's motor vehicle to their
home or another residential location. This
legislation would create a deterrent for those who
might otherwise drive impaired if unable to find an
alternative method of transportation. It grants
taxicab companies and the person or organization that
participates in making arrangements for the
transportation of the intoxicated person and his/her
vehicle legal immunity in the event that an accident
occurs, except in the case of recklessness, gross
negligence, or intentional misconduct.
There are times when Alaskans find themselves in an
"end of evening" dilemma - they are over the .08 blood
alcohol limit and shouldn't drive, but are worried and
reluctant to leave their car unattended overnight. HB
423 resolves this dilemma by allowing a taxicab
operator to drive an intoxicated person home while a
second operator follows them home in their vehicle.
While annual alcohol-related traffic fatalities have
decreased by more than 33% over the past few decades,
the latest statistics show a recent increase with more
than 17,400 people killed and more than half a million
others injured in alcohol-related crashes in 2002 in
the United States. Alaska had 87 traffic deaths of
which 35 were alcohol-related (40%) in 2002. The
previous year there were 47 alcohol related deaths out
of the 89 deaths (53%).
In order for this program to be successful cab
companies and liquor establishments must work and
communicate closely. These establishments will
implement the following strategies and policies:
Place signs near pay phones, direct lines to cab
companies and in other conspicuous areas of the
establishment such as restrooms and near exits.
Train the establishment staff on the availability of
this program and how to inform patrons, and how to
implement the process.
Make public service announcements (PSA) at closing
time to help influence patrons to use the program
Pay a portion of the cab fare cost agreed upon by
establishments and program officials
Track program usage to assess effectiveness to promote
and or improve the program
This bill passed from the House State Affairs
Committee with the understanding we would address the
insurance liability issue prior to a hearing in the
Judiciary committee. The sponsor worked with
Representative Gruenberg and his staff and with Mr.
Lessmeier, who represents State Farm Insurance and is
in the audience today. You should a letter of support
in your bill packet from the Property Casualty
Insurers Association of America, submitted by John
George. The committee should have a copy of the CS,
version I in your bill packet.
I'll be available to answer any questions you have,
but I will defer any technical questions on the
insurance liability issue to Mr. Lessmeier, who
crafted the new language in the CS.
Number 1059
REPRESENTATIVE GRUENBERG moved to adopt the proposed committee
substitute (CS) for HB 423, Version 23-LS1600\I, Luckhaupt,
3/17/04, as the work draft. There being no objection, Version I
was before the committee.
Number 1102
MICHAEL L. LESSMEIER, Attorney at Law, Lessmeier & Winters;
Lobbyist for State Farm Insurance Company ("State Farm"), stated
that he was present to support this legislation. He explained
that [State Farm] wasn't involved in the initiation of this
concept, but became involved when concerns were raised in the
House State Affairs Standing Committee regarding a
[hypothetical] situation in which the driver delivering the
vehicle home runs a red a light and hurts an innocent
individual. After working with Representative Gruenberg and the
sponsor, Mr. Lessmeier said, it was determined that the
insurance on the vehicle would follow the vehicle. Therefore,
the language in Section 1, subsection (a), was changed to read
as it does in Version I.
MR. LESSMEIER recalled that the second concern raised was in
regard to the liability of an organization or a person who is
participating in making arrangements for the transportation of
the vehicle who might not hold a liquor license or might not be
an agent or employee of "a person". For example, there was an
issue raised with regard to what would happen to a municipality
or an organization such as Mothers Against Drunk Driving (MADD)
if it helped to arrange a program such as that proposed in HB
423. Therefore, the language in Section 1, subsection (b), was
changed. He suggested that on page 2, line 12, after "A
person", the language, "or entity" should be inserted.
Therefore, it would be clear that anyone from any organization
that makes arrangements for transportation of vehicle wouldn't
be liable.
MR. LESSMEIER pointed out that in Section 1, subsection (c)(2)
makes it clear that whatever is being done with this legislation
doesn't impact a person's ability to recover damages under any
applicable uninsured or underinsured motorist coverage, which
didn't seem to be clear in the original legislation. Mr.
Lessmeier concluded by encouraging the committee to move the
bill.
Number 1277
JIM SHINE JR., Staff to Representative Anderson, Alaska State
Legislature, assisted Representative Anderson, sponsor, by
offering that basically this legislation allows an intoxicated
bar patron and his or her vehicle to be transported home. The
Cabaret Hotel Restaurant & Retailers Association (CHARR) started
organizing this concept and it was introduced as HB 68 in the
Twenty-First Alaska State Legislature, but ultimately was
stalled in the Senate Judiciary Standing Committee at the end of
session. He explained that CHARR has been able to obtain
financial support from bars, taxi companies, and corporate
sponsors in Anchorage in order to pay the $40 one-time flat fee
to transport the bar patron and his or her vehicle home. The
bar patron will be transported in the taxicab while the bar
patron's vehicle will be driven by a second taxicab operator.
As already mentioned, the insurance liability will stay with the
bar patron's vehicle in the case of an uninsured or underinsured
motorist.
REPRESENTATIVE GARA asked what the liability is that people are
concerned with under the current law.
MR. SHINE answered the [concern] involves a vehicle owner who
doesn't have insurance.
Number 1362
REPRESENTATIVE GARA commented that he doesn't have a grasp of
the circumstances which justify the need for this legislation.
MR. LESSMEIER reminded the committee that he wasn't involved in
putting together the program. However, he recalled that
testimony in the House State Affairs Standing Committee relayed
that the transportation companies couldn't procure the insurance
to cover this kind of risk, and if they couldn't cover the risk
under their own insurance policies, then they wouldn't provide
this service.
REPRESENTATIVE GARA asked if this legislation is requiring that
the vehicle owner's policy be extended to the person who drives
the vehicle in this circumstance.
MR. LESSMEIER answered in the affirmative. In further response
to Representative Gara, Mr. Lessmeier specified that the
provision [extending the vehicle owner's policy to the person
who drives the vehicle] is essentially in Section 1, subsection
(a). The intent of Section 1, subsection (a), and [Version I]
is that the [vehicle] owner's policy would follow the vehicle.
REPRESENTATIVE GARA said he understood that to be the intent.
However, the language [in Section 1, subsection (a)] merely says
that the "taxicab driver isn't liable beyond the limits of the
owner's car" rather than specifying that the owner's vehicle
insurance would [follow the vehicle].
CHAIR McGUIRE opined that it says it by [inference]. She
explained that [Section 1, subsection (a)] is specifying that
one is liable, but not beyond the limits of the policyholder of
the car.
REPRESENTATIVE GARA pointed out that it merely refers to "any
applicable insurance policy" and doesn't require that the
insurance policy of the owner of the vehicle applies. He
offered his understanding that the desire is to say that the
vehicle owner's insurance policy should cover the taxicab
driver.
Number 1485
MR. LESSMEIER referred to Section 1, subsection (a)(4), and
offered his belief that under most [automobile] insurance
policies, as long as the driver is driving as a permissive user
- driving with permission [from the owner] - then the coverage
follows the vehicle. He opined that the language in [Section 1,
subsection (a)(4)] accomplishes that for the taxicab driver.
REPRESENTATIVE GARA pointed out that [using such language] is
banking on the insurance policy having language in it that
matches subsection (a)(4) of Version I. He said he would be
more comfortable with language that specifies that the insurance
coverage shall apply in the circumstance desired. If the desire
is to allow the vehicle owner's policy to protect the victim,
then that should be specified, rather than saying that the
victim would be protected in the event that the policy of the
insurance company has language matching the language in this
legislation.
MR. LESSMEIER commented that he isn't familiar with every policy
sold. Mr. Lessmeier explained:
The intent of what we were trying to do here is ... to
put the person in no worse [a] situation than they
would be in if the driver was actually driving. In
other words, let's say this person that is having
their car delivered got into that car and ... drove it
home. We wanted, with this bill, to put ... the
victim in the same position they would be in if that
person were behind the wheel. No better. No worse.
And ... through this bill, it was not the intent to
put them in a better position.
It was not the intent to put them in a worse position.
It was the intent of these changes simply to address a
situation in the original bill which made the taxicab
driver immune from all liability. That's what we were
trying to accomplish. We were not trying to create
coverage where none exists, Representative Gara, and
that would be the concern I would have about your
proposal. We were simply trying to put them in the
same position. And that's what we intended to
accomplish and that's what, I think, we did
accomplish.
Number 1640
CHAIR McGUIRE recalled that Representative Rokeberg's 2002
legislation, HB 68, passed the House unanimously and provided
100 percent immunity [for taxicab drivers], rather than the
change worked on by Representative Gruenberg and Mr. Lessmeier.
MR. LESSMEIER indicated his agreement, and reiterated that the
concern was brought up in the House State Affairs Standing
Committee. This solution, he pointed out, was developed in
conjunction with the sponsor and Representative Gruenberg's
office. If the intent is to find a deeper a pocket than
would've existed if the [intoxicated person] had actually gotten
into the vehicle and driven home, then it's totally different
legislation.
REPRESENTATIVE GARA relayed that he wanted, and he understood
Mr. Lessmeier to want, the taxicab driver to have the same
coverage as the vehicle owner would have if he or she had driven
the vehicle home.
MR. LESSMEIER specified that the intent is to provide the same
coverage on the person driving the vehicle home. There is no
desire to create coverage where none otherwise existed.
CHAIR McGUIRE interjected that Representative Gara and Mr.
Lessmeier are saying the same thing.
REPRESENTATIVE GARA agreed, but opined that the language of the
legislation doesn't address it. Therefore, he surmised that
[the intent] is that to the extent the owner of the vehicle had
coverage, the taxicab driver should be protected by that
coverage. If the owner of the vehicle didn't have coverage,
then the taxicab driver wouldn't be given coverage that didn't
exist.
MR. LESSMEIER argued, "It's a little different. ... It's to the
extent that the coverage ... would be in place on the driver of
that vehicle."
Number 1740
MR. LESSMEIER posed a situation in which the vehicle is a stolen
vehicle. Under Representative Gara's notion, coverage would be
created where it would not otherwise exist due to saying that
the owner's coverage always follows the vehicle.
CHAIR McGUIRE interjected, "The driver, not the car."
REPRESENTATIVE GARA said, "The driver's coverage."
MR. LESSMEIER noted that the vehicle owner's coverage "may"
[provide coverage to the driver of the vehicle] under the terms
of the policy. Coverage certainly would be applied to the
permissive user of the vehicle under many of the circumstances
being discussed. However, [State Farm] had concerns with regard
to a person who wasn't a permissive user and there could be
other issues. He reiterated that there is no desire to create
coverage where it didn't otherwise exist.
REPRESENTATIVE GARA surmised, then, that the intent is to ensure
that the taxicab driver has the coverage that the person who
would've driven the vehicle home would've had. However, he
pointed out, the legislation doesn't make that policy held by
the person who would've driven the vehicle home available to the
taxicab driver. Representative Gara posed a situation in which
an intoxicated individual drove home. In one circumstance the
intoxicated individual has a policy that specifies that his
coverage extends to anyone he authorizes to drive him home. In
the aforementioned circumstance, this legislation [works]
because the policy specifies that the [policy holder] is covered
and so is the individual he provides with the authority to drive
the vehicle home.
REPRESENTATIVE GARA then posed a situation in which the
intoxicated individual's policy says that the policy covers the
[policy holder] but not those he gives the authority to drive
his vehicle. In such a situation, this legislation doesn't
require that the [policy holder's] insurance extend to the
taxicab driver. Representative Gara stated that he wants to
extend the [policy holder's] insurance to the taxicab driver as
was stated by Representative Anderson and Mr. Lessmeier. It
seems simple [that the legislation] would specify that the
policy should follow the driver, he said.
Number 1978
MR. LESSMEIER said that although he would have to review the
statutes, he believes that permissive users are covered.
Furthermore, he said he didn't know of any policy that doesn't
cover [permissive users]. He offered to check into that. Mr.
Lessmeier reiterated [State Farm's] opposition to mandating
coverage where it doesn't exist.
REPRESENTATIVE GARA remarked, "If we're only requiring coverage
under coverage that exists but not under coverage that doesn't
exist, we're not doing anything with this bill."
MR. LESSMEIER disagreed. He explained that this legislation
began by giving complete immunity to the driver, which isn't the
case now. Now the legislation only provides immunity [up to]
the coverage that exists, and furthermore [this legislation
ensures] that this doesn't impact a person's ability to recover
under his or her [underinsured or uninsured motorist] policy.
REPRESENTATIVE GARA expressed the need not to inadvertently
eliminate policy coverage that does exist. He posed a situation
in which the person driving the vehicle home may have his or her
own liability policy, an underinsured and uninsured motorist
policy, and perhaps even a homeowner's policy.
MR. LESSMEIER interjected that the person driving the vehicle
home isn't going to have underinsured and uninsured motorist
coverage that provides coverage to the injured person. The
injured person would be the one with the underinsured and
uninsured motorist coverage. He specified that he wasn't
present to debate the philosophical reasons why this legislation
was introduced. Mr. Lessmeier clarified that [State Farm] saw a
problem [and is attempting to address] the possible situation in
which an innocent person is left uncompensated.
REPRESENTATIVE GARA suggested that apart from the owner's
policy, which should follow the driver, the legislation should
also include language specifying "or any other applicable
policy." He said he didn't know why the legislation limits the
policies that someone could use to obtain coverage. He
specified that the circumstance being addressed is one in which
the taxicab driver who is driving the [intoxicated individual's]
car home does so poorly and kills someone. Therefore, the
desire is to point out to the victim's family from whom it can
seek compensation. He expressed the need to allow other
policies, beyond the [vehicle] owner's policy, to apply.
However, the legislation seems to say that the only policies
that apply are uninsured and underinsured policies, even though
there may be some liability policies that could apply as well.
CHAIR McGUIRE announced that she would take public testimony
today and then set HB 423 aside. She pointed out that [the
legislation] has to create an incentive for a taxicab driver to
drive an intoxicated person's home. She asked why the taxicab
driver would risk having his/her insurance rates increasing due
to something happening when the taxicab driver drives an
intoxicated person's vehicle home.
Number 2180
MR. LESSMEIER recalled that the testimony in the House State
Affairs Standing Committee suggested that adding the language,
"or any other applicable policy", would kill this program. Mr.
Lessmeier said that [State Farm] wants to recognize, as a matter
of policy, that this is a good program and that there is a
narrow situation in which an innocent victim could be hurt.
Therefore, [State Farm] wants to be sure that in the
aforementioned situation, there would be coverage for that
person.
REPRESENTATIVE SAMUELS asked if Mr. Lessmeier would have
problems with the following language: "The auto insurance that
covers the driver [shall also] cover the taxicab driver that
drives the car from the licensed premises to the home or
directed location of the original driver."
MR. LESSMEIER said he would want to think about that,
reiterating that he doesn't want to create coverage where no
coverage exists.
REPRESENTATIVE SAMUELS asked, "Of the auto insurance that covers
the driver?"
MR. LESSMEIER replied in the affirmative and said that [State
Farm] doesn't have any problem with the suggested language.
Number 2266
LINDA WILSON, Deputy Director, Public Defender Agency (PDA),
Department of Administration (DOA), testified in support of HB
423. She expressed pleasure with legislation that is trying to
do something positive to prevent people from driving while
intoxicated. Giving the taxicab driver the opportunity to drive
an intoxicated individual's car is a positive step. She
commented that it's nice to see legislation that isn't punitive
and that addresses a problem.
CHAIR McGUIRE, upon determining no one else wished to testify,
closed public testimony.
REPRESENTATIVE GARA asked if the intention is that the taxicab
company's liability policy doesn't go into effect [in these
situations].
MR. SHINE explained that this is a pilot program for the
Anchorage area. Taxicab operators in Anchorage are independent
contractors that have to take out their own insurance policies
on a vehicle and it only stays with the vehicle. He recalled
testimony in the House State Affairs Standing Committee from the
transportation inspector, who specified that the insurance [held
by the operators] would only be applicable to licensed taxicabs.
REPRESENTATIVE GARA surmised that if the [taxicab driver] also
had insurance that followed them, the [taxicab driver] wouldn't
mind having that apply.
MR. SHINE agreed. However, he said he found that taxicab
operators have a difficult time obtaining insurance because
[they] can charge a fee for the driving and there is an
incentive to drive faster to obtain better tips and make more
trips. He relayed that no insurance company in Alaska will
insure taxicab operators. In fact, he said, the only insurance
company that he could find that will insure taxicab operators is
"Scottsdale."
TAPE 04-42, SIDE B
Number 2393
REPRESENTATIVE GARA clarified that he isn't saying that all
other policies should apply; rather, he is merely asking if
there is any reason why language specifying, "any other
insurance policy that applies shall apply" wouldn't be
acceptable.
MR. SHINE highlighted that HB 423 aims to get drunk drivers off
the road. He echoed the sponsor's earlier testimony that almost
40 percent of the traffic deaths in 2002 were alcohol related.
In reviewing the issue of insurance, Mr. Shine informed the
committee that taxicab drivers are supposed to be professional
drivers because they have to go through licensing and drug
testing, and thus the probability of a death or an accident
while transporting a vehicle would be slim. He relayed that the
House State Affairs Standing Committee discussed the slim chance
of an accident occurring in comparison to taking drunk drivers
off the road and saving lives.
REPRESENTATIVE GARA offered his understanding that the point is
not to hold the taxicab driver liable above the available
insurance limits. However, the reality is that among
professional drivers there is the pressure to drive fast and get
more fares. He posed a scenario in which a taxicab driver runs
a red light and kills a child or permanently injures someone.
He noted that the reality is that most people carry inadequate
insurance. The current legislation says that perhaps the policy
of the person who would've driven the vehicle home would be in
effect, and the legislation also covers uninsured and
underinsured coverage. However, he maintained that there may be
other insurance policies that also apply. Therefore, he
reiterated his suggestion to include the following language:
"or any other applicable insurance policy". Representative Gara
specified that he didn't want to mandate that other insurance
policies apply, but if they do already apply, then they do so in
this situation as well. Representative Gara said that he had no
problem immunizing the taxicab driver, which he viewed as the
purpose of the legislation.
Number 2260
REPRESENTATIVE SAMUELS pointed out that the sponsor statement
and the memorandum requesting a hearing for HB 423 seem to
suggest that this legislation immunizes the individual who
drives the intoxicated individual home as well as the driver of
the intoxicated individual's vehicle. He surmised that if this
is true and the intoxicated individual is immunized, then every
taxicab driver with an intoxicated rider is being immunized. He
said he didn't see [such language] in the legislation.
REPRESENTATIVE GRUENBERG clarified that HB 423 has nothing to do
with the taxicab driver who transports an intoxicated individual
home; this legislation only deals with the individual driving
the [intoxicated] individual's vehicle.
Number 2209
CHAIR McGUIRE announced that HB 423 would be set aside.
HB 351 - CARBON MONOXIDE DETECTION DEVICES
Number 2184
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 351, "An Act relating to the devices, including
carbon monoxide detection devices, required in dwellings; and
providing for an effective date."
Number 2150
REPRESENTATIVE GRUENBERG moved to adopt the proposed committee
substitute (CS) for HB 351, Version 23-LS1325\V, Bannister,
3/18/04, as the working document. There being no objection,
Version V was before the committee.
Number 2136
REPRESENTATIVE CARL GATTO, Alaska State Legislature, one of the
prime sponsors of HB 351, explained that the main reason for
this legislation is that there is the possibility of negligence,
which could kill people. Furthermore, low levels of carbon
monoxide are fairly damaging to newborns, toddlers, and the very
young. Moreover, it's possible to have a hazardous situation in
the home by accident. In this latter possibility,
Representative Gatto pointed out that someone could fall asleep
with the auto start to the car in his or her pocket and
accidentally activate the auto start. Starting an automobile in
a garage produces enough carbon monoxide to get someone very
sick, if not dead.
REPRESENTATIVE GRUENBERG, speaking as one of the prime sponsors
of HB 351, informed the committee that HB 351 received a
referral to the House Judiciary Standing Committee because the
legislation specifies that not having a carbon monoxide detector
would be a class B misdemeanor with a 30-day jail sentence.
Some have felt that the aforementioned penalty is too high.
Therefore, Sections 5 and 6 were added to Version V. Section 5
is a conforming amendment while Section 6 provides that not
having a carbon monoxide detector is a violation as defined in
AS 11.81.900, which carries a maximum fine of $500.
REPRESENTATIVE GRUENBERG explained that the legislation provides
that in all qualified dwelling units, the [carbon monoxide]
detection devices must be installed and have an alarm, which can
be a visual or auditory alarm. The devices must be in working
order, he noted. Representative Gruenberg highlighted that on
page 2, line 4, the language "of any deficiencies" and "the
landlord" was added by Representative Gatto. The aforementioned
change necessitated broadening the title to include carbon
monoxide detection devices as well as smoke detection devices.
Basically, this legislation adds carbon monoxide detection
devices to the existing law pertaining to smoke detection
devices. Representative Gruenberg informed the committee that
just this week the Municipality of Anchorage passed a very broad
carbon monoxide detection ordinance.
Number 1957
KELLY NICOLELLO, Assistant State Fire Marshall, Central Office,
Division of Fire Prevention, Department of Public Safety (DPS),
announced that the [division] is in favor of [Version V] because
it makes good sense. He noted that very large spaces, such as
hotels and large residential locations, aren't impacted. This
legislation is geared toward homes.
REPRESENTATIVE GRUENBERG noted that in the past, John Bitney, a
lobbyist for Alaska State Home Builders Association, has
testified that this is a top priority of that organization. He
offered his understanding that it's also a top priority of the
firefighters association as well. Representative Gruenberg then
drew attention to the [definition] of "qualifying dwelling
unit".
CHAIR McGUIRE noted that James Baisden, Fire Marshal, Kenai Fire
Department, had been on-line but decided to forward his
testimony in written form. Upon determining no one else wished
to testify, Chair McGuire closed public testimony on HB 351.
Number 1864
REPRESENTATIVE GRUENBERG moved to report the proposed CS for HB
351, Version 23-LS1325\V, Bannister, 3/18/04, out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, CSHB 351(JUD) was reported
from the House Judiciary Standing Committee.
HB 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
Number 1850
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 244, "An Act relating to the Code of Criminal
Procedure; relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to rights of
prisoners after arrest; relating to discovery, immunity from
prosecution, notice of defenses, admissibility of certain
evidence, and right to representation in criminal proceedings;
relating to sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure, and Rules
404, 412, 609, and 803, Alaska Rules of Evidence; and providing
for an effective date."
Number 1780
REPRESENTATIVE GRUENBERG moved to adopt the proposed committee
substitute (CS) for HB 244, labeled 04-0033, 1/16/2004, as the
work draft. There being no objection, this proposed CS was
before the committee.
Number 1748
SUSAN A. PARKES, Deputy Attorney General, Central Office,
Criminal Division, Department of Law (DOL), reminded the
committee that last year it heard a version of HB 244 about
which many concerns were raised by committee members and the
public. She relayed that the proposed CS should address many of
those issues and concerns while maintaining a balance regarding
the public's safety, victim's rights, and defendant's rights.
Ms. Parkes informed the committee that the consecutive
sentencing provisions found in Sections 18-19 and 25-26 are
identical the provisions the committee debated last year which
mandate that judges give some consecutive time of imprisonment
for serious offenses.
MS. PARKES turned to the issues of immunity and self-defense,
which the department views as high priority matters. Both of
these issues were in last year's version of HB 244, although in
a very different form. She directed the committee's attention
to Sections 15-17 and Section 20. Ms. Parkes informed the
committee that the desire is for the statute to conform to State
v. Gonzalez, which specifies that in Alaska, transactional
immunity, rather than use immunity, must be provided. The
proposed CS establishes a procedure by which to accomplish this
goal. Under the proposed CS, the witness can have a private
hearing with the judge and his/her attorney in order to offer
proof with regard to why the witness believes he/she has a valid
Fifth Amendment privilege. The significant difference between
last year's legislation and the proposed CS is that the
prosecutor wouldn't be present at that hearing. If the judge
found that there was a valid Fifth Amendment privilege, the
proposed CS would allow the judge to inform the prosecution of
that fact and that it would apply to a higher-level felony, a
lower level felony, or a misdemeanor. Therefore, the
aforementioned is the only information that would be given to
the prosecution and thus when a prosecutor is asked to give a
witness immunity, there is enough information to ensure a
responsible exercise of immunity. The department believes that
this balances privacy and protection of the witness while
providing the state enough information to responsibly exercise
the tool of immunity.
Number 1514
REPRESENTATIVE GARA asked what the current procedure involves.
MS. PARKES answered that often these things are worked out
informally, but there isn't a uniform way in which this is
handled. She relayed that her experience is that the judge has
a private meeting with the witness or just the witness's
attorney and the judge determines whether the witness has a
valid Fifth Amendment privilege and then announces that to the
prosecution. Then, if the prosecution wants the witness to
testify, the witness would have to be given immunity.
REPRESENTATIVE GARA surmised, then, that there could be a
situation in which there is a murder and a witness says he or
she has immunity, which leads the judge to hold a hearing in
camera and subsequently inform [the prosecution] that the
witness will be provided immunity if he/she testifies, but [the
prosecution] has no idea what the crime is for which the witness
is receiving immunity.
MS. PARKES clarified that only the state can provide immunity.
The judge would simply inform [the prosecution] that the witness
has a Fifth Amendment privilege and if the witness is required
to testify, the witness may incriminate himself or herself.
Therefore, if the [prosecution] wants the witness to testify,
then [the prosecution] would have to give the witness immunity.
In response to Representative Gara, Ms. Parkes confirmed that
[the prosecution] receives no indication of what [crime] the
immunity might be for. Because the state can only offer
transactional immunity, the witness would receive immunity with
regard to whatever crime he or she testifies about on the stand.
REPRESENTATIVE GARA inquired as to the witness's interest in not
letting the prosecution know the subject of the immunity.
Number 1414
MS. PARKES said that there is concern that [information
regarding the level of crime] could somehow be used as an
investigative tool; the state could refuse the witness immunity
and then focus on that witness in an investigation. However,
she opined that the more realistic reason the witness doesn't
want the [information] to be known by the prosecution is because
people often use the Fifth Amendment as a way to escape having
to testify against friends.
REPRESENTATIVE GARA surmised, then, that the court, under this
legislation, would only be able to provide the level of the
crime but not the specific crime.
MS. PARKES agreed.
MS. PARKES turned to the issue of self-defense and Sections 13
and 14, and explained that Section 13 makes the level of
evidence to obtain a self-defense instruction consistent with
federal law. Therefore, the legislation proposes the need for
some plausible evidence that could warrant a jury to find self-
defense before the instruction is given. She opined that under
Alaska case law, a judge will give a self-defense instruction
for any evidence, even implausible evidence, of self-defense.
CHAIR McGUIRE recalled the Wallner case in which a woman was
stabbed forty-some times. She further recalled that the
defendant, because the confession was excluded, took the stand
and offered a self-defense theory. In the aforementioned
situation, would that be considered plausible, she asked.
MS. PARKES answered that a judge would have to make that
decision, and such a decision would be based on whether the
judge found the defendant's testimony credible or plausible. If
it is found to be plausible, the self-defense instruction might
be given.
Number 1173
REPRESENTATIVE GRUENBERG clarified that the content of the
instruction is a question of law, while the giving of
instruction, based on the view of the evidence, makes it almost
review-proof in many cases. The trial court in Alaska has very
broad discretion on the admission and exclusion of evidence and
whether to give it to a jury.
MS. PARKES agreed that there is broad discretion with regard to
what evidence goes to a jury. She then explained that the
problems in self-defense cases have mainly arisen in situations
in which a drug deal "went bad" or there has been gang activity
in which [the prosecution] can't show who fired the first shot,
and so no one is prosecuted. Therefore, the legislation
specifies that one wouldn't be entitled to self-defense if the
individual is involved in a drug transaction or gang activity.
CHAIR McGUIRE commented that such was what the committee
requested last year.
REPRESENTATIVE GRUENBERG noted that the language being discussed
is on page 8, lines 7-13. Representative Gruenberg said he is
very concerned because [the language] doesn't specifically say
what Ms. Parkes is saying. Furthermore, there aren't one set of
evidentiary or defense rules for gang-related cases and drug
cases.
CHAIR McGUIRE remarked that at least [the language] is getting
closer to what was being discussed [at the last hearing].
Number 0933
REPRESENTATIVE GARA commented that he still isn't convinced that
there isn't a way to better limit the language to apply to gang
activity. Representative Gara acknowledged that it's difficult
to come up with fair rules for people who are doing terrible
things. In this case, Representative Gara said that he is more
sympathetic to making it harder for the person who is in the
business of selling drugs. He said he didn't consider the
person who purchases drugs because of his or her drug habit as
engaging in the same class of crime [as a person who is in the
business of selling drugs]. He posed a situation in which a
person who purchases drugs from someone he or she knows is
dangerous decides to carry a weapon for protection. In such a
situation, if the drug dealer starts violent activity and the
purchaser defends himself or herself, the purchaser would lose
his/her right to claim self-defense under this provision.
REPRESENTATIVE GARA specified that he would be more comfortable
dealing with such a situation in a way that affects the drug
dealer [because] a drug dealer who brings a weapon to a drug
deal is doing something much worse than someone with a drug
habit who might bring a gun along at a drug deal. He asked if
such a distinction could be made in this provision.
MS. PARKES recalled that in the Senate there were suggestions to
limit it to felonious activities or to limit it to people who
bring a dangerous weapon. The language is being reviewed for
possible changes in order to make it apply in the situations
desired.
REPRESENTATIVE GARA said he would probably be agreeable if it is
limited to the [drug] dealer, not the purchaser.
Number 0729
REPRESENTATIVE SAMUELS posed a situation in which a [drug user]
goes to a drug dealer's apartment and shoots the drug dealer,
takes the drugs, and claims self-defense.
REPRESENTATIVE GARA responded that the [drug user] would go to
jail.
REPRESENTATIVE SAMUELS clarified that in that hypothetical
situation, the [drug user] came by to purchase only a small
amount of drugs.
MS. PARKES interjected that when everyone has a gun, proving who
drew first is the problem. Therefore, the [intent] is to
address those situations in which one engages in inherently
dangerous activity that one comes to armed because of the
knowledge that it's inherently dangerous. In such a situation,
the individual assumes the risk that he or she might have to use
his or her weapon. "This is meant to deter people from doing
that," she said.
REPRESENTATIVE GRUENBERG said he doubted that an individual who
is going to purchase or sell a large quantity of drugs is going
to review the criminal code to determine whether he or she will
be prosecuted for self-defense. Representative Gruenberg opined
that this isn't a circumstance in which [the law] would deter
anyone.
MS. PARKES continued her presentation, noting that the remaining
provisions are new ones. She pointed out that Section 8
provides for a small modification to the felony murder statute,
and explained that [the department] is proposing the deletion of
the "other than a participant" language. Therefore, [those
participants who didn't point a gun] could be charged with
murder in the second degree in a situation in which four people
attempt to rob a convenience store and one of the four points
the gun at the clerk, but the clerk shoots the individual who
pulled the gun.
MS. PARKES offered that right now, there doesn't seem to be a
logical reason to treat participants in a serious felony
differently when the foreseeable consequence is that someone
could die, whether it's an innocent person or one of [the
perpetrators]; "it's the same serious conduct, so we're
proposing to take away that distinction."
MS. PARKES highlighted that Sections 21 and 23 address felony
driving while under the influence (DUI). Because of the 10-year
look-back, there are situations in which someone will have a
felony DUI and later receive a misdemeanor DUI. Therefore, the
[department] is proposing that once one receives a felony DUI,
every DUI received after that is a felony.
Number 0467
MS. PARKES, in response to a question, returned to Section 8 and
explained that the language "other than a participant" was
deleted. Therefore, if one of the "bad guys" die rather than
the victim, the other "bad guys" can be charged with murder in
the second degree. Under current law, if, during the course of
a serious felony, someone other than a participant is killed,
it's considered murder in the second degree.
REPRESENTATIVE GARA surmised, then, that in a situation in which
one of the participants in the felony is killed, under the
proposed CS, it would also be murder in the second degree.
MS. PARKES answered in the affirmative.
REPRESENTATIVE GARA posed a situation in which two people commit
a burglary or robbery with no intention to hurt anyone, but the
store clerk shoots one of the burglars. Under the proposed CS,
the remaining burglar would be charged with murder in the second
degree.
MS. PARKES replied yes, and added that under current law if
robbers went into a store with no intention to kill anyone, but
one of them shoots the store clerk, the remaining participants
would be charged with murder in the second degree.
Number 0229
REPRESENTATIVE GRUENBERG, returning attention to Sections 21 and
23, mentioned that Representative Rokeberg has introduced
legislation dealing with the look-back provision.
MS. PARKES offered her understanding that Representative
Rokeberg's legislation addresses the misdemeanor look-back,
while the proposed CS only addresses felony DUI, which currently
has a 10-year look-back. She explained that currently, one
would have to have two prior DUIs within a 10-year period and
then the third DUI would be a felony. Therefore, the individual
would do some jail time and, after being released, if the
individual was charged with another DUI two years later, that
DUI would only be a misdemeanor because it would be beyond the
10 years.
MS. PARKES turned attention to Sections 22 and 24, which
addresses Conrad v. State wherein the new "big gulp" defense was
put forward. She explained the "big gulp" defense as follows:
an individual at a bar who isn't intoxicated pounds back five
shots and hops in his or her car to drive home. The police
immediately stop this individual before the alcohol can enter
the individual's blood stream, but [the alcohol has entered the
blood stream] an hour later at the police station when he/she is
tested.
TAPE 04-43, SIDE A
Number 0001
REPRESENTATIVE GRUENBERG asked if there is a constitutional
problem with this [defense].
MS. PARKES said she didn't believe so, and explained that [the
department] believes it's a perversion of the current law.
REPRESENTATIVE GRUENBERG posed a situation in which one
individual drinks just immediately before the accident, but so
immediately that it hasn't had a chance to affect the
individual. He also posed a situation in which an individual
drinks immediately after an accident and [the alcohol] didn't
affect the individual in this case either. If this
[legislation] precludes the [big gulp] defense, he opined, there
would be due process and equal protection problems because in
both hypothetical scenarios, the alcohol didn't affect the
driving.
MS. PARKES disagreed and opined that what's being prohibited is
people having that level of alcohol in their bodies getting into
a car and driving. She said she didn't believe the intent is to
get into the "blood-alcohol expert-witness" debate on the blood
alcohol level. In the case wherein someone drinks after
driving, the alcohol isn't in the person's system when he/she
was behind the wheel. The aforementioned situation wouldn't be
illegal. However, she opined that it's very different if
someone has alcohol in his/her system at the time of an
accident. She pointed out that the statute says that if within
four hours of the driving, a person's blood alcohol
concentration (BAC) is 0.08 or over, he/she is DUI. Therefore,
she said, she believes that the legislature can legislate the
aforementioned. Ms. Parkes said she didn't believe [the
committee] wants people drinking in bars to try to calculate
their body weight, how much they have eaten, and how far away
they live in order to determine whether they can make it home
before [the alcohol] reaches their system.
REPRESENTATIVE GARA surmised that this legislation doesn't limit
the "big gulp" [defense] in the traditional case.
MS. PARKES replied no, and specified that the defense is being
prohibited because the individual would have the alcohol in his
or her system when behind the wheel of the car. She clarified
that what isn't being prohibiting is the [defense] for a
situation in which an individual pulls into his or her driveway
and, after entering the house, drinks.
Number 0329
REPRESENTATIVE GARA posed a situation in which a chemical test
indicates that an individual is drunk, although the individual
only had two drinks and believes the chemical test to be wrong.
In such a situation, the individual would want to introduce
evidence of having consumed alcohol in order to explain the
results of the chemical test. However, it seems that Section 22
doesn't allow for the introduction of evidence showing that the
individual didn't have very much to drink.
MS. PARKES clarified that there is no intention to prohibit an
attack on an inaccurate chemical test. The intent is simply to
not allow the argument that at the time the individual was
driving the blood alcohol was lower than specified at the later
chemical test.
REPRESENTATIVE GARA remarked that the intent is fine, although
the language is of concern.
MS. PARKES offered to review that.
REPRESENTATIVE GARA suggested that the language should say, "If
you're defense is that you've had an amount of alcohol that
would render you intoxicated, ... you can't use the defense that
you weren't intoxicated in time ... for the [chemical test]."
He related his belief that the "big gulp" theory could be
described in the section and then specified that it can't be
used.
MS. PARKES turned attention to Section 9. She explained that
the assault statutes include assault in the fourth degree, which
refers to criminal negligence causing "physical injury by means
of a dangerous instrument." However, there is no assault
statute that covers cases in which an individual in a vehicular
collision may not have had a blood alcohol level at 0.08 but may
have alcohol or drugs in his/her system, or some other condition
that makes the individual's driving criminally negligent.
Therefore, to cover such serious-physical-injury situations, the
proposed CS includes a new assault in the third degree provision
that would make such a situation a class C felony.
REPRESENTATIVE GRUENBERG highlighted that the lowest crime in
[Alaska statute] is a class B misdemeanor and the next level is
a violation. Representative Gruenberg opined that there are
some [crimes] that should have a 30-day jail sentence, and
therefore he stated his desire to have a class C misdemeanor.
He commented that a number of things would fall into his
proposed class C misdemeanor. He inquired as to the
department's thoughts on such.
MS. PARKES said she would research that issue, but pointed out
that the disorderly conduct statute has a maximum of 10 days in
jail. Therefore, there is already at least one statute in which
the penalty is different than that of a class A or B
misdemeanor.
CHAIR McGUIRE announced that HB 244 would be held over.
ADJOURNMENT
Number 0743
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:20 p.m.
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