03/04/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB107 | |
| HB175 | |
| HB95 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 175 | TELECONFERENCED | |
| + | HB 95 | TELECONFERENCED | |
| = | HB 107 | ||
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 4, 2005
1:05 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 107
"An Act providing for the award of full actual attorney fees and
costs to a person aggrieved by unlawful obstruction or hindrance
of hunting, fishing, or viewing of fish or game; amending Rules
79 and 82, Alaska Rules of Civil Procedure; and amending Rule
508, Alaska Rules of Appellate Procedure."
- MOVED CSHB 107(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 175
"An Act relating to the creation of a civil legal services
fund."
- MOVED CSHB 175(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 95
"An Act relating to public health and public health emergencies
and disasters; relating to duties of the public defender and
office of public advocacy regarding public health matters;
relating to certain claims for public health matters; making
conforming amendments; and providing for an effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 107
SHORT TITLE: ATTY FEES: HUNTING/FISHING INTERFERENCE
SPONSOR(S): REPRESENTATIVE(S) RAMRAS
01/24/05 (H) READ THE FIRST TIME - REFERRALS
01/24/05 (H) RES, JUD
02/02/05 (H) RES AT 1:00 PM CAPITOL 124
02/02/05 (H) Heard & Held
02/02/05 (H) MINUTE(RES)
02/09/05 (H) RES AT 1:00 PM CAPITOL 124
02/09/05 (H) Heard & Held
02/09/05 (H) MINUTE(RES)
02/16/05 (H) RES AT 1:00 PM CAPITOL 124
02/16/05 (H) Moved CSHB 107(RES) Out of Committee
02/16/05 (H) MINUTE(RES)
02/18/05 (H) RES RPT CS NT 3DP 1DNP 4NR
02/18/05 (H) DP: OLSON, ELKINS, RAMRAS;
02/18/05 (H) DNP: SEATON;
02/18/05 (H) NR: GATTO, LEDOUX, CRAWFORD, KAPSNER
02/18/05 (H) FIN REFERRAL ADDED AFTER JUD
03/02/05 (H) JUD AT 1:00 PM CAPITOL 120
03/02/05 (H) Heard & Held
03/02/05 (H) MINUTE(JUD)
03/04/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 175
SHORT TITLE: CIVIL LEGAL SERVICES FUND
SPONSOR(S): REPRESENTATIVE(S) MCGUIRE
02/24/05 (H) READ THE FIRST TIME - REFERRALS
02/24/05 (H) JUD, FIN
03/04/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 95
SHORT TITLE: PUBLIC HEALTH DISASTERS/EMERGENCIES
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/21/05 (H) READ THE FIRST TIME - REFERRALS
01/21/05 (H) HES, JUD
02/10/05 (H) HES AT 3:00 PM CAPITOL 106
02/10/05 (H) Moved CSHB 95(HES) Out of Committee
02/10/05 (H) MINUTE(HES)
02/11/05 (H) HES RPT CS(HES) NT 2DP 2NR 1AM
02/11/05 (H) DP: CISSNA, WILSON;
02/11/05 (H) NR: GARDNER, ANDERSON;
02/11/05 (H) AM: KOHRING
03/04/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JIM POUND, Staff
to Representative Jay Ramras
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented a proposed CS for HB 107 on
behalf of the sponsor, Representative Ramras.
VANESSA TONDINI, Staff
to Representative Lesil McGuire
House Judiciary Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 175 on behalf of the sponsor,
Representative McGuire.
ART PETERSON, Member
Board of Directors
Alaska Legal Services Corporation (ALSC)
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding HB 175.
ANDY HARRINGTON, Executive Director
Alaska Legal Services Corporation (ALSC)
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 175.
RUSS WEBB, Trust Program Officer
Alaska Mental Health Trust Authority (AMHTA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 175.
MARIE DARLIN, Coordinator
AARP Capital City Task Force
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 175.
CAREN ROBINSON, Vice-Chair
Board of Trustees
Alaska Mental Health Authority (AMHTA);
Lobbyist for Alaska Women's Lobby and
Alaska Network on Domestic Violence and Sexual Assault
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 175.
RICHARD MANDSAGER, M.D., Director
Central Office
Division of Public Health
Department of Health and Social Services (DHSS)
Anchorage, Alaska
POSITION STATEMENT: Presented HB 95 to the committee.
PATRICIA SENNER, Chair
Legislative Committee
Alaska Nurses Association (AaNA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 95.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:05:07 PM. Representatives
McGuire, Coghill, Dahlstrom, and Gara were present at the call
to order. Representatives Anderson, Kott, and Gruenberg arrived
as the meeting was in progress.
HB 107 - ATTY FEES: HUNTING/FISHING INTERFERENCE
1:06:31 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 107, "An Act providing for the award of full
actual attorney fees and costs to a person aggrieved by unlawful
obstruction or hindrance of hunting, fishing, or viewing of fish
or game; amending Rules 79 and 82, Alaska Rules of Civil
Procedure; and amending Rule 508, Alaska Rules of Appellate
Procedure." [Before the committee was CSHB 107(RES); in
members' packets was a proposed committee substitute (CS) for HB
107, Version 24-LS0444\L, Utermohle, 3/3/05.]
JIM POUND, Staff to Representative Jay Ramras, Alaska State
Legislature, sponsor, said, on behalf of Representative Ramras,
that they believe they have worked out an agreement with members
regarding concerns raised at the bill's last hearing. On the
question of whether current statute already addresses the issue
of law enforcement activities, he said, since the proposed
change was essentially designed to provide for an affirmative
defense, a proposed committee substitute (CS) in members'
packets has moved the proposed change into AS 16.05.790(d),
which already addresses affirmative defenses for law enforcement
personnel. With regard to the concern that the bill will make
it profitable for someone to bring a lawsuit, the proposed CS
allows the prevailing party to be awarded all costs but only 90
percent of reasonable, actual attorney fees; this latter change
has allowed the sponsor to delete the proposed indirect court
rule change to Rule 79 of the Alaska Rules of Civil Procedure.
1:07:48 PM
REPRESENTATIVE DAHLSTROM moved to adopt the proposed committee
substitute (CS) for HB 107, Version 24-LS0444\L, Utermohle,
3/3/05, as the work draft. There being no objection, Version L
was before the committee.
REPRESENTATIVE GARA commented that he appreciated the work the
sponsor did to address members' concerns.
REPRESENTATIVE COGHILL said that he still had a concern
regarding quantifying behavior that would result in "physically
interfering or tampering with" viewing, and that he will
continue to work with the sponsor on that issue.
1:09:43 PM
REPRESENTATIVE DAHLSTROM moved to report the proposed CS for HB
107, Version 24-LS0444\L, Utermohle, 3/3/05, out of committee
with individual recommendations and the accompanying zero fiscal
notes. There being no objection, CSHB 107(JUD) was reported
from the House Judiciary Standing Committee.
HB 175 - CIVIL LEGAL SERVICES FUND
1:10:24 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 175, "An Act relating to the creation of a civil
legal services fund."
REPRESENTATIVE DAHLSTROM moved to adopt the proposed committee
substitute (CS) for HB 175, Version 24-LS0656\G, Bullock,
3/3/05, as the work draft. There being no objection, Version G
was before the committee.
1:10:57 PM
VANESSA TONDINI, Staff to Representative Lesil McGuire, House
Judiciary Standing Committee, Alaska State Legislature,
presented HB 175 on behalf of Representative McGuire, bill
sponsor. She explained that the bill would provide a financial
mechanism whereby the legislature may make appropriations to
organizations that provide civil legal services to low-income
Alaskans. Currently AS 09.17.020(j) provides that 50 percent of
punitive damages awards in tort cases go into the general fund
(GF). She said that HB 175 would establish a civil legal
services fund into which the legislature may appropriate these
monies, and it allows the legislature to appropriate money from
the fund to organizations that provide civil legal services for
low-income Alaskans. This would not create a mandatory
expenditure, she pointed out; each legislature would have the
option to appropriate the money into the fund. Low-income would
be defined as equal to or less than the maximum income levels
for Alaska as determined under 45 C.F.R. Part 1611.
REPRESENTATIVE GRUENBERG asked for clarification regarding the
change in Version G.
MS. TONDINI explained that one change was that low-income had
been defined as previously stated, whereas the original bill
stated only that low-income would be determined by the Alaska
Legal Services Corporation (ALSC). The ALSC, a nonprofit
entity, was created in 1966 to assist Alaskans with civil legal
needs and has been funded through a combination of state,
federal, and private sources; she noted that these funds have
been on the decline. She said, "It makes sense that civil
lawsuits, [from] which these punitive damages awards come out of
can be used to fund cases which are no less important, but to
help out low-income Alaskans."
MS. TONDINI asserted that HB 175 is important because low-income
people have the same legal needs as everyone else, and they
shouldn't have the burden of representing themselves unless they
so choose. She stated that HB 175 addressed the current
inadequate funding structure of organizations that provide legal
services, and it would provide for the services using punitive
damages awards for egregious offenses rather than draining other
sources of funding.
MS. TONDINI outlined a second change in Version G, "Any costs of
collection that the state [has] incurred, with respect to the
punitive damages awards, should come out of the proceeds before
they [are] put into the civil legal services fund, to not act as
a disincentive for the Department of Law to create the fund."
She referred to lines 9-10 of Version G, which read, "less the
cost of collection if any incurred by the state."
1:15:34 PM
CHAIR McGUIRE pointed out:
When low-income civil litigants chose to represent
themselves pro se, which is the only option you have
if you don't have an attorney, it ends up costing all
of us ... and so you've got judges put in ... a very
awkward position of advising when they shouldn't be,
you have pro se defendants trying to work their way
through the legal system at great cost to the courts
and so on, and so there's a fiscal note to that that
we don't see. And this is one mechanism of helping to
fund this organization that leads these folks into the
legal process, which frankly as we all know, is very
confusing, and the stakes are high for many people.
REPRESENTATIVE GRUENBERG asked if the 50 percent of the award
that goes to the GF includes the award of attorney fees.
ART PETERSON, Member, Board of Directors, Alaska Legal Services
Corporation (ALSC), answered that it would not.
REPRESENTATIVE GRUENBERG asked, regarding the punitive damages,
if the state would normally have the plaintiff's attorney
collect the portion awarded to the state, or if the state itself
would do the collection. He said, "If in fact the state is not
doing the cost collection in a given case, I would say it should
be less the costs of collection."
CHAIR McGUIRE noted that two people from the ALSC would be
available for questioning.
REPRESENTATIVE GARA said:
The amount that would be deducted would be the amount
of money the state expends in going after the private
council and saying "There was an [attorney fees]
recovery; we should get half of it." And sometimes
there are negotiations that go on in order for the
state to get its share, and so the attorney general
will spend some time doing that. I think the bill
sponsors need to do this to make sure ... that we
don't have a fiscal note.
REPRESENTATIVE GRUENBERG asked if work performed by the
plaintiff's attorney, such as a writ of execution or judgment
debtor examinations, would be [paid for with] the state's half
of a punitive award.
REPRESENTATIVE GARA replied negatively, and pointed out that the
bill stated "costs incurred by the State".
REPRESENTATIVE GRUENBERG asked if those costs should be deducted
as well.
REPRESENTATIVE GARA answered that that's a different question.
1:20:24 PM
MR. PETERSON clarified:
When the punitive damages award goes into the general
fund ... that's a separate matter. Once the money is
in the pot, then the only ... fiscal consideration ...
is what the state has to do to get the money in the
pot. And now we've created this little sub-pot that
allows for the percentage to go to this public
purpose. So if there is state expense in collecting
that, ... then maybe it makes sense to deduct that.
But any other areas outside that ... [are] not
relevant to what the state is involved in putting the
money in the pot or taking this percentage out and
providing it for this legal services public purpose.
MR. PETERSON commented that at one time the ALSC had 14 offices
around the state and 93-97 employees. Now there are eight ALSC
offices, one of which is open part-time. He said, "We've had to
open and close offices because of the erratic state funding."
In recent years, the ALSC had received about [$125,000] from the
state, but last year, even though there was no decrease in
cases, the legislature cut the funding in half, and then the
governor zeroed it out with a line-item veto, Mr. Peterson
pointed out. He also commented:
One of the things I read that just floored me was the
governor's statement to the effect that providing
legal services was not a state function, as though the
state were not obligated to provide equal access to
all the people of the state. ... This bill will
provide one little step in helping [the ALSC] secure a
source of funding. My dream is to get our endowment
fund up to a level that would enable us to be self-
sustaining. ...
MR. PETERSON continued:
We need the regular appropriation from the state and
we need this bill. [The ALSC] provides efficiency.
The attorneys there work for a fraction of what they
would get in the private section. We start our
attorneys at something like [$30,000]. ... One of our
staff members is a Harvard ... law school graduate.
... [He could] probably be earning close to a million
dollars a year in the corporate world or the banking
investment world, and he's working for something like
[$50,000]. ... So it's a program that provides the
biggest bang for the buck; you get more work, more
service, out of any money that goes into [the ALSC]
than any other program I've been aware of. ... It
helps judges and helps everyone else involved with the
legal system, because when judges have to try to help
one side of a case because that person doesn't have
enough money, doesn't know the procedure, is
overwhelmed by the whole process, that slows things
down enormously.
MR. PETERSON related a personal anecdote in which he represented
the legislature in a suit brought by a person who was not
represented by an attorney. He said that the situation was
complicated until a pro bono attorney offered to represent the
plaintiff, and then the proceedings moved forward smoothly.
MR. PETERSON commented that he was not intimately familiar with
the accounting aspects of the bill, but he thought that Version
G was reasonable and therefore he supported it.
REPRESENTATIVE COGHILL asked Mr. Peterson to explain the current
AS 09.17.020(j).
1:29:19 PM
MR. PETERSON replied that he cannot. He pointed out that in his
38 years of practicing law in Alaska, he had never handled a
case that involved punitive damages. He noted that
Representative Gara may be more familiar with the statute.
REPRESENTATIVE COGHILL asked if Mr. Peterson was familiar with
45 C.F.R. 1611, and if it was a criteria that was already in
practice.
MR. PETERSON replied affirmatively and explained that the
regulation sets the level [for eligibility] at 125 percent of
the U.S. Department of Health and Human Services' poverty
guideline. The person then must go through the case priority
screening before gaining services.
1:31:19 PM
REPRESENTATIVE GARA remarked:
I don't think that much ends up in the fund; I think
it's pretty inconsistent, but it's a very small
percentage of cases that ever involve punitive
damages.... For those of you that don't know, you get
punitive damages in a civil case if, in addition to
the party that hurt you doing something wrong, they
did it in a way that involved reckless disregard of
your interest and safety. And so that's a high
standard and it doesn't happen that often. And then
often you'll get a punitive damages award and then the
judge will take it away before it goes up to the
appeals court. ... So I don't know what the annual
average amount is that goes into that fund. I suspect
it's not that much.
REPRESENTATIVE GARA asked Mr. Peterson what he thought of the
idea of entitling the ALSC to 100 percent of the attorney fees
when a case is won.
MR. PETERSON responded that there is now a federal prohibition
on attorney fees going to legal services; the fees that the ALSC
is now collecting are for cases that were started before the
prohibition went into effect. He commented, "It's really
outrageous because the other side, when they win, they can get
[attorney fees] but if we win we can't get attorney fees
anymore." He noted: "I hadn't really thought of the concept of
equal access to justice as being necessarily a liberal or
conservative issue. ... It's a matter of doing justice for
everybody and it shouldn't be a [liberal] versus conservative
issue."
1:36:03 PM
REPRESENTATIVE GARA agreed and asked whether the committee would
be amenable to creating a committee letter to the finance
committee stating that there should be a state role in
supporting legal services.
CHAIR McGUIRE opined that some people question whether poor
people are poor for the "right" reasons. She noted that
people's opinions are shaped by "the place that you come from in
the world," and so "it's not necessarily about bad people with
bad ideas." Many people are poor due to circumstances beyond
their control, she remarked, and putting a person into the legal
system without someone being on his/her side will cost everyone
in the long run.
MR. PETERSON asked the committee members to remember that "many
of us really lucked out" by having "good genes" as well as
supportive family and friends. He noted that luck plays a huge
role in whether or not someone might need assistance with legal
services. He mentioned the book The Other America by Michael
Harrington as an illustration of this fact, which is about
poverty and "this percentage of the population that many of us
never see ...." He recommended the book to the committee
members and remarked, "That book had a lot of influence on why I
put 31 years into Alaska Legal Services, and 38 years into
public service in the State of Alaska."
1:43:16 PM
ANDY HARRINGTON, Executive Director, Alaska Legal Services
Corporation (ALSC), presented some background information on the
ALSC. He relayed that the ALSC is very cost effective, and that
it provides legal information to the general public through a
web site and through a series of clinics offered by a staff of
volunteer attorneys. He pointed out that the ALSC is not a
state agency, and it doesn't represent people who have been
charged with a crime. He noted that the consequences in civil
cases can be just as significant for a family, for example:
loss of family shelter or health care coverage; garnishment of a
wage earner's income; or jeopardizing the right to be free from
domestic violence. He clarified that the ALSC's eligibility is
set at 125 of the poverty level for Alaska, which equals about
$14,000 per year for one person.
MR. HARRINGTON stated that the ALSC's mission is to provide
equal access to justice in resolving civil legal problems of
low-income clients, promote family stability, and reduce the
legal consequences of poverty. He noted:
Providing representation to low-income clients helps
the court system function more efficiently for
everyone, including judges and other litigants. A
civil case in which one or both people are
unrepresented takes more time and attention from the
judge and increases the chances that the judge's
decision will be based on incomplete information.
MR. HARRINGTON shared two anecdotes to illustrate how the ALSC
was able to help clients. He noted that on the criminal side,
the legislature has promoted equal justice for all people
regardless of income restrictions; HB 175 reflects a similar
approach on the civil side.
1:50:37 PM
REPRESENTATIVE COGHILL said he would be interested in Mr.
Harrington's information on punitive amounts.
MR. HARRINGTON stated that according to his understanding,
approximately $150,000-175,000 had come to the state under AS
09.17.020(j) in the last fiscal year, and for the most recent
fiscal year it amounted to $300,000-400,000. He said he
anticipates that the funds will fluctuate; he expects that most
years little or no money will come into the fund because
"neither the plaintiff nor the defendant have a particular
incentive to settle for punitive damages, and most civil cases
are resolved by settlements, so it will be an exception to the
rule when there ... are punitive damages at all, and very much
an exception when there is a large punitive damage award."
REPRESENTATIVE COGHILL asked what the cost of collection would
be.
MR. HARRINGTON said that he did not know. He commented that he
had posed this question to the acting attorney general, who told
Mr. Harrington that he didn't think it was much, perhaps around
$10,000-20,000 worth of attorney time. Mr. Harrington noted,
"We did talk about whether he would prefer ... having some sort
of administrative fee of 3 percent or 4 percent, or whether he
would prefer having his attorneys keep track of any time they
put it on any of these particular tasks," and the attorney
general had indicated that he preferred the latter, which led to
the language in Version G.
REPRESENTATIVE COGHILL remarked that this would probably provide
a mechanism for the attorneys to make sure that they kept track
of their time.
1:53:51 PM
REPRESENTATIVE GARA again raised the issue of recovering full
attorney fees, and asked Mr. Harrington if there was a potential
of letting the "sort of branch-off group that legal services has
that is allowed to ... work on the monetary cases," recover full
attorney fees.
MR. HARRINGTON indicated that might be a possibility for such
organizations such as the Alaska Pro Bono Program Incorporated
(APBP). He explained that when the restrictions were put on all
Legal Services Corporation funding recipients, the [ALSC]
established the APBP as a separate entity so that if there were
attorneys willing to volunteer to handle those cases, they
wouldn't be blocked by the restrictions on the ALSC. He noted
that the attorneys who volunteer their time through the APBP can
recover attorney fees.
REPRESENTATIVE GARA asked Mr. Harrington to contact him with any
further thoughts or information.
1:56:45 PM
RUSS WEBB, Trust Program Officer, Alaska Mental Health Trust
Authority (AMHTA), testified on behalf of the AMHTA board in
support of HB 175. He said that the AMHTA believed that the
bill would provide the legislature with a good tool for putting
to appropriate use the 50 percent of punitive damages awarded in
civil suits that are deposited into the GF. He remarked that
the AMHTA supports the bill because it will help ensure the
availability of legal assistance to the AMHTA beneficiaries, who
are people with mental disabilities and low income who are
eligible for legal services from the ALSC. He noted that the
AMHTA beneficiaries are particularly vulnerable and unable to
advocate effectively for themselves. He said: "They are often
in need of legal services to obtain federal disability benefits,
VA benefits, access to housing, health, and other services. ...
They are the subject of and vulnerable to discrimination and
exploitation, and they're clearly less equipped to be their own
advocates and to obtain justice." HB 175 would help make sure
that the AMHTA beneficiaries get the assistance that is needed
in order to obtain benefits which help them overcome their
disabilities, he noted.
2:00:15 PM
MARIE DARLIN, Coordinator, AARP Capital City Task Force,
remarked that the AARP had sent the committee a letter of
support for HB 175. She stated that the bill would be one more
way of trying to solve some fiscal problems, and it would be
helpful to older Alaskans.
REPRESENTATIVE GARA noted that the legislature passed a bill
last year that would let the attorney general's office receive
full attorney fees when it wins a consumer case, and that this
year the governor's office has proposed to hire some attorneys
who would represent seniors in fraud cases.
MS. DARLIN commented that the AARP is concerned about that issue
and hopes that it would be addressed.
2:02:59 PM
CAREN ROBINSON, Vice-Chair, Board of Trustees, Alaska Mental
Health Authority (AMHTA); Lobbyist, Alaska Women's Lobby;
Lobbyist, Alaska Network on Domestic Violence and Sexual
Assault, noted that all the trustees of the AMHTA support HB
175. She agreed with comments made by Chair McGuire and Mr.
Peterson. She pointed out that women from domestic violence and
sexual assault situations often need assistance; she offered the
example of a rape victim who needs help to get out of an
apartment lease so that she can move somewhere safer. She noted
that in the 1980s, the ALSC was the only agency that could
assist women in getting protective orders.
MS. ROBINSON reminded the committee of all the work that lawyers
had done toward setting up [the ALSC]. She commented: "We
expect sometimes that lawyers are supposed to just jump in and
do the pro bono work that's needed.... Even though quite a few
lawyers may be willing to put their name out there to help, they
may not have the expertise." She remarked that the advantage of
using people who have committed their life to this field is that
they have the expertise that is truly needed to help these
folks.
2:08:26 PM
REPRESENTATIVE GRUENBERG offered his understanding that before
the federal prohibition, the ALSC was getting approximately
several hundred thousand dollars a year in attorney fees. He
asked for clarification about the prohibition.
MR. HARRINGTON related that the regulation states that the ALSC
can neither collect nor retain attorney fees, and if a court
were to award fees sua sponte, the ALSC would be required to
file a motion stating that the ALSC cannot collect and retain
the fee.
REPRESENTATIVE GRUENBERG suggested that in any case in which the
ALSC represented the prevailing party, the attorney general
would have the right to seek attorney fees, which would go into
the GF and then into the new fund. The legislature could then
appropriate the funds to the ALSC. This way the ALSC would
neither be seeking fees nor receiving them.
MR. PETERSON asked if the legal fees sought by the attorney
general would be based on the attorney time put in by the ALSC
attorney.
REPRESENTATIVE GRUENBERG answered affirmatively.
MR. HARRINGTON commented that this was an idea that could be
explored, and offered to research that issue.
CHAIR McGUIRE suggested that the issue be explored but she did
not wish to hold the bill over.
REPRESENTATIVE COGHILL noted that the bill had a finance
referral and so there was time to explore the issue.
CHAIR McGUIRE stated that she thought the idea needed more work,
and she preferred to pass the bill through the committee.
2:13:37 PM
REPRESENTATIVE COGHILL commented that he preferred the wording
in Version G, but was reluctant to adopt federal code into
statute by reference because federal code could change. He said
that "equal to or less" helps to define [the poverty level], but
he would research other options.
REPRESENTATIVE GARA asked if it was legal to adopt something
that changes in the future.
REPRESENTATIVE COGHILL noted that the state has had to revise
statutes in the past when the referenced regulations changed.
CHAIR McGUIRE said she would be amenable to going back to
language in original bill. She proposed that low-income be
defined as 125 percent of poverty level.
2:17:48 PM
REPRESENTATIVE COGHILL commented that he would rather the
committee define it, and suggested a conceptual amendment to
define low-income as 125 percent of the poverty level.
REPRESENTATIVE GRUENBERG pointed out that the reference is to
the organizations that would be able to access the fund. He
noted that the ALSC has federal standards that it must meet, and
"to be certain that [the ALSC] can access this fund, we must
reference the federal ... level it has to meet. He asked Mr.
Harrington why the changes were made in the CS.
MR. HARRINGTON replied that he was told that it is more
appropriate for state statute to reference an existing law or
regulation, whether state or federal, than it is to make
reference to a federal corporation. He pointed out that the
federal government sets a different poverty ceiling for Alaska
than it does for the Lower 48 states. Therefore, he opined, it
would be important to reference 125 percent of the Alaska
poverty level.
REPRESENTATIVE GRUENBERG asked Mr. Harrington which of the three
choices he preferred.
MR. HARRINGTON stated that the language he would prefer would be
the language that would be most likely to pass.
2:22:20 PM
REPRESENTATIVE COGHILL made a motion to adopt Conceptual
Amendment 1, which would define low-income as 125 percent of the
Alaska poverty level.
CHAIR McGUIRE asked whether there were any objections to
Conceptual Amendment 1. There being none, Conceptual Amendment
1 was adopted.
2:23:18 PM
REPRESENTATIVE KOTT moved to report the proposed CS for HB 175,
Version 24-LS0656\G, Bullock, 3/3/05, as amended, out of
committee with individual recommendations and the accompanying
zero fiscal notes. There being no objection, CSHB 175(JUD) was
reported from the House Judiciary Standing Committee.
HB 95 - PUBLIC HEALTH DISASTERS/EMERGENCIES
2:23:49 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 95, "An Act relating to public health and
public health emergencies and disasters; relating to duties of
the public defender and office of public advocacy regarding
public health matters; relating to certain claims for public
health matters; making conforming amendments; and providing for
an effective date." [Before the committee was CSHB 95(HES).]
RICHARD MANDSAGER, M.D., Director, Central Office, Division of
Public Health, Department of Health and Social Services (DHSS),
presented HB 95 to the committee. He directed attention to
"slides" printed in a handout available in the committee packet,
and read the quote from the Institute of Medicine on page 2:
"Public Health is what we, as a society, do collectively to
assure the conditions in which people can be healthy." He said:
What this bill is about is the governmental part of
public health; it's not about the private part, it's
not about the family part.... If one thinks back over
the last 150 years, what contributed to the almost
doubling of life expectancy of Americans between 1900
and today is things like sewage and sewage removal
..., safe water, ... protection from vaccine-
preventable diseases, ... clean indoor air, mandated
removal from the environment of carcinogens, [and]
removal of lead from gasoline. All of those things
have contributed to improve public health and improve
both quality and quantity of life of Americans.
DR. MANDSAGER asserted that public health is concerned with
populations, not just poor people, and prevention, not just
treatment. "Government plays a really unique role in legal
obligations to prevent disease, disability, injury, and
illness," he noted. Some examples of this: immunization
policies in schools, PPDs [purified protein derivatives, a
method of testing for tuberculosis, or TB], and injury
prevention. If public health personnel do their job right, he
said, they're in the background, but when there is an outbreak
they need to be prepared to contain it.
DR. MANDSAGER turned to slide 4 and said that another important
aspect of public health falls under the purview of the
Department of Environmental Conservation (DEC), which looks at
the food, water, and air safety, and at the reasons animals die.
"Public health law really underpins all of our work, and the
reason that we're introducing this bill is to update that
underpinning," he added.
DR. MANDSAGER explained that slide 5 speaks to the public health
emergency side. He commented that prior to [the terrorist
attacks of September 11, 2001] "nobody had really thought about
the fact that biological or chemical agents could really be
terrorist tools; so preparedness is a big part of what we are."
He shared an anecdote in which a lab in Fairbanks was able to
determine within a 24-hour period that a young Juneau girl had
measles, and a possible outbreak was contained. "That's what we
do in the background to try and contain outbreaks," he said.
DR. MANDSAGER pointed out that avian flu has been in the news
lately. He explained that this flu has now been transmitted on
numerous occasions in the last couple of years from birds to
humans, and recently there have been indications of possible
human-to-human transmission. He pointed out that avian flu has
a 70 percent mortality rate, and if it mutates and becomes
transmissible human to human, "containment and the ability to
quarantine and isolate is going to be really important." He
continued:
We learned with SARS [Severe Acute Respiratory
Syndrome] a couple of years ago that we could contain
a viral outbreak. Toronto proved that ... they were
able to contain it - same thing in Hong Kong. ...
We've learned that we can, if we have appropriate
quarantine and isolation tools, contain an outbreak,
because in many of these diseases, ... drugs aren't
going to be very useful. We're going to have to limit
exposure.... Today we don't have that authority in
our state.
If I got a call from CDC [Centers for Disease Control
and Prevention] that somebody was coming from Hanoi on
an airplane into Anchorage tonight, and they thought
this person has avian flu, we would have to try and
convince a judge that our general governmental
authorities were enough to quarantine that individual.
And it's very unclear with current statutes whether a
judge would agree.
DR. MANDSAGER pointed out some weaknesses in the current
statutes, including inadequate legal authorities, and problems
with the virology laboratory in Fairbanks. He then turned to
slide 7 and quickly reviewed past outbreaks: polio and
tuberculosis in the 1940s.
2:31:18 PM
DR. MANDSAGER explained that slide 8 showed pictures of
quarantine and isolation, which he said aren't used very often,
but are tools that are important to have in the background.
Slide 9 focused on concerns regarding avian flu, on which he
commented: "We need to be prepared around the world. There's a
lot of work going on in Southeast Asia right now to try and
contain this disease, but it appears it is now endemic in birds
across Southeast Asia."
DR. MANDSAGER reminded the committee that current statutes date
back to territory days in the 1940s and have been updated twice:
once to address tuberculosis and once for SARS. The bill would
provide statutory framework to support public health missions,
services, and roles, he said, it would give clear authority for
control of conditions of public health importance, and would
create modern due process, rights, and rules in statute. He
noted:
If we tried to serve you with a quarantine or
isolation order and you thought government had
overreached, it's very unclear in current statutes
what your rights are, what your appeal rights are, and
it would be pretty much up to the judge you were
dealing with as to how this would turn out for you as
an individual.
DR. MANDSAGER clarified that HB 95 defines the essential public
health service and the state's role. He continued:
The bill is the result of several years' worth of
work. At the time of [the terrorist attacks of
September 11, 2001] there was already some work going
on nationally about what should be the emergency
powers in a state after that; that work was rapidly
accelerated, and part of that work was incorporated a
couple of years ago when the legislature updated the
Emergency Powers Act here in our state. The Robert
Wood Johnson Foundation then, in the last several
years, funded something called a [Turning Point Model
State Public Health Act] process. ... It developed a
model act for states to use to look at their current
statutes. ... Last summer ... we started a process of
reviewing our current Alaska statutes against the
model Act, and this proposal is a result of that work
over the course of the summer and fall. ... This
proposal also takes into context [the Alaska State
Constitution] ... and other laws.
DR. MANDSAGER noted that slide 13 is an outline of HB 95, and
that slide 14 explains the various authorities in the act.
Slide 15 focuses on balancing the protection of the public's
health against the individual's rights to due process, he said,
and slide 16 addresses some of the constitutional constraints.
2:36:46 PM
DR. MANDSAGER raised the issue of Acquired Immune Deficiency
Syndrome (AIDS) and the question of why individuals that have it
aren't quarantined or isolated. He explained that people who
are quarantined have a contagious disease that is transmissible
to somebody through no act of the individual, such as via
breathing or eating, whereas to contract AIDS, one ordinarily
would have to engage in an unsafe practice. He said, "We in our
country have decided that it wouldn't meet the test to
quarantine or isolate somebody for a behavior in which there's
an individual behavior that contributes to ... [contagion]."
DR. MANDSAGER pointed out that HB 95 would not add new powers,
but would only put a statutory basis behind the state's current
practices. He turned to slide 17, dealing with the balance
between individual rights and the common good, and pointed out:
The model Act includes the fact that it's suggested
that states have the ability to impose treatment.
[House Bill 95] ... does not have that authority to
impose treatment. ... Our thinking is that at the
point treatment is a possibility, the individual has a
choice: they can choose to be treated and be no longer
contagious or possibly contagious, or they can go into
quarantine or isolation, and the public's health is
protected. The individual has an individual choice to
make for themselves, and so the proposal before you
does not include a mandated treatment.
Another thing that has come up in previous hearings
has been the suggestion that for religious reasons, a
person should be able to exempt themselves from
screening or testing. ... We don't think that's a good
idea ... [because] in an emergency situation where you
have an epidemic that's short-lived, if one or two
people were to exempt themselves for religious
reasons, it probably doesn't matter. There will be
enough other people who will voluntarily agree to
testing and we could figure out what's going on, and
very shortly the individual's either going to be
better, get cured, or, unfortunately, [die].
In a chronic situation, which is much more [of the]
Alaska experience with tuberculosis [TB], if
somebody's exposed to TB and chooses not to get
tested, we then are left with somebody that may or may
not have TB, and it seems to me that we would then
have the administrative burden of monitoring that
person forever and putting that person into quarantine
whenever they cough. And that doesn't seem to me to
be a reasonable thing to do.
DR. MANDSAGER explained that slide 18 spoke to limitations, and
slide 19 again addressed the balance that must be found between
individual rights and the common good. He noted that the
American Civil Liberties Union (ACLU) had proposed that there
shouldn't be any ex parte process in any of the authorities, and
he said, "If we give somebody a treatment order and they were to
refuse, and we think that this person is a risk to somebody, we
want to be able to have somebody else besides a state medical
officer ... say to a judge, 'This person needs to be ...
isolated or quarantined in order to protect the public health.'"
DR. MANDSAGER explained that if this were to occur on a Thursday
or Friday afternoon, this process could be completed quickly via
a district judge through an ex parte process; the department can
get an order that same day and "the public can be protected that
weekend." The person is entitled to a hearing, and yet the
public's health is protected over the weekend, he said. If
there was no ex parte process, he noted, there would need to be
a hearing before there could be a court order, and then the
department's only "tool" would be to obtain an emergency order,
which isn't as quick a process.
DR. MANDSAGER turned attention to slides 20 and 21, which
addressed the proposed amendments. He explained that one of the
proposed amendments would add some new standards to the
department's ability to acquire and use identifiable health
information. He said:
Obviously a concern of the public is: when does
government have the right to get to identifiable
health information. Last summer, in July, people
started coming off cruise ships in Whittier with what
looked like gastroenteritis. It looked like it was
probably going to be a norovirus (ph) outbreak, which
we've had every summer for the last several summers,
but by talking to individuals, getting samples and so
on, and getting a history, it quickly became apparent
that this was an "oyster story". And it turned out
that what we had was an organism called Vibrio
parahaemolyticus both in Prince William Sound and in
Kachemak Bay, [that] had never been cultured north of
61 degrees North latitude before anywhere in the
world, and it wasn't thought that you had to have a
process in place before oysters went to market to
assure their safety.
A lot of people got sick. We would [have] never ...
known it if we hadn't been able to, one, do an
outbreak investigation and, two, be able to go into
identifiable health information. Now the report that
comes out the other side, that is used for policy that
DEC is implementing for this coming summer's oyster
season, has no identifiable health information;
people's ... identifiers are stripped off of it and we
have a report that has numbers of people who got sick
and where they got sick and what farms were involved
and that kind of thing. But that's an example of the
kind of work and the balance that's important in
public health that we be able to do.
DR. MANDSAGER shared another anecdote:
[There are] several villages up on one river in the
Interior that all construction was stopped last summer
because asbestos was found in the gravel. So there
are no standards to know how much of a risk is
asbestos in gravel for outdoor construction - what
kind of protection is necessary, can you use that
gravel. So we've been working with ... those villages
over the last six months to try and figure out a plan
so [the Department of Transportation (DOT)] and others
can resume construction this coming summer. ... [We]
have looked at x-rays of everybody over age 50 who's
been willing to give us their x-rays, and have sent
those x-rays to an outside expert that's an expert in
asbestosis. And it's not reported yet, but
unofficially I can tell you about 5 percent of the
people over age 50 have signs of asbestosis in those
villages. So now we need to go back to those
individuals, get a work history, ... and try and
figure out a protection plan for those villages as to
how they're going to do construction.
DR. MANDSAGER pointed out that the DHSS and the DEC have been
working in partnership with Native organizations and people in
the coastal villages to look at mercury levels in people and in
fish. He noted that the departments have issued policy
statements to say that from the data they have, it is safe to
eat fish in Alaska because the mercury levels are very low. He
said, "If we ... aren't able to do that kind of work, we can't
contribute to that kind of policy discussion." He then related
a story from last fall in which the citizens of Kivalina had
their blood tested for possible lead contamination. He
concluded: "Those are examples of ... where we work in the
background to contribute to community discussion. ... My hope
is, by the time the legislature goes home in May, Alaska isn't
the only state in the country ... without quarantine and
isolation authority."
2:48:05 PM
REPRESENTATIVE DAHLSTROM asked Dr. Mandsager to address the
issue of monitoring water standards, and the fact that the state
only has one medical examiner. She commented that she is
concerned about the rights and responsibilities of an employer
while someone is in isolation, as well as the potential
liability that a person would face if he/she chose not to go
into isolation. She also asked for clarification regarding who
would take responsibility for children if both parents were in
isolation. She commented that it would be fine to address these
concerns [at the bill's next hearing].
REPRESENTATIVE GARA relayed his concern that the statute will
"allow the state to quarantine people we don't intend to
quarantine", such as people with AIDS. He said that he was not
comfortable with the argument that the committee shouldn't worry
about the language because the courts wouldn't enforce it that
far; he stated that he wanted the language to exclude those
diseases that [the committee] doesn't want the law to apply to.
He pointed out that the bill says that the department may
quarantine people in their own home; he said that if people were
willing to be quarantined in their own home, that should be
their absolute right and the state shouldn't have the discretion
to quarantine them somewhere else.
2:51:21 PM
PATRICIA SENNER, Chair, Legislative Committee, Alaska Nurses
Association (AaNA), relayed that since [the terrorist attacks of
September 11, 2001] and the SARS outbreak in Asia, the
Association has been involved in advocating for better disaster-
disease outbreak planning. She commented:
We were very pleased the Department of Health and
Social Services has taken steps in strengthening their
legal authority to respond to these types of public
health emergencies. It is imperative that the state's
health authorities have in place a mechanism to
respond quickly to an infectious disease outbreak. We
have read this bill from two perspectives: that of
the health care provider and that of the affected
individuals. We feel that this bill adequately
addresses the needs of both these [perspectives], with
a few concerns. Our first concern has to do with
[proposed AS 18.15.387 on page 15, line 19], which
refers to being able to quarantine and isolate only
due to disease outbreaks. There's also a mention in
there ... of decontamination efforts.
We have suggested to the department that they expand
this section to refer to situations where individuals
are exposed to highly toxic substances that might be
transmitted from one individual to another. In this
latter case, such as an incident where individuals are
exposed to radioactive materials, the department may
want to quarantine or isolate individuals, just as
they would in the case of a disease outbreak. Now,
the department has come back to us and said, "Well
that's under DEC," but I think in a crisis situation,
the local officials are going to grab on [to]
whoever's there, and if the health department is the
one that's there, I'd rather have duplicate lines of
authority and not just [rely] on one agency for that.
MS. SENNER continued:
[Proposed AS 18.15.360 on page 8, line 23] states,
"The department may request information from and
inspect health care records maintained by health care
providers that identify individuals or characteristics
of individuals with reportable diseases or other
conditions of public health importance". ... This
section probably concerns us the most because of
experiences of health care providers in other states
where public health officials have been asking and
requesting large numbers of private health care
records on individuals, and it seems to be mostly to
advance their own personal political status and not
really for public health purposes. We don't have
questions about the current people in place in the
health department, but certainly because there's a lot
of concern in the health care community as a whole
about what's going on in other states, we would like
... the criteria for this to be spelled out as much as
possible.
REPRESENTATIVE GRUENBERG asked Ms. Senner if she had read the
packet of proposed amendments.
MS. SENNER replied that she had seen an earlier amendment.
REPRESENTATIVE GRUENBERG asked Ms. Senner if she supported the
amendment labeled [24-GH1002\G.1, Mischel, 3/3/05], which read:
Page 8, line 29, following "information":
Insert "under this section"
Page 8, following line 31:
Insert a new section to read:
"Sec. 18.15.362. Acquisition and use of
identifiable health information; public health
purpose. The department may acquire and use
identifiable health information collected under
AS 18.15.355 - 18.15.390 only if the
(1) acquisition and use of the information
relates directly to a public health purpose;
(2) acquisition and use of the information
is reasonably likely to contribute to the achievement
of a public health purpose; and
(3) public health purpose cannot otherwise
be achieved at least as well with nonidentifiable
health information."
Page 20, following line 24:
Insert a new paragraph to read:
"(18) "public health purpose" means the
prevention, control, or amelioration of a condition of
public health importance, including an analysis or
evaluation of a condition of public health importance
and an evaluation of a public health program;"
Renumber the following paragraphs accordingly.
REPRESENTATIVE GRUENBERG also asked if Ms. Senner would draft an
amendment for [proposed AS 18.15.387].
MS. SENNER, in referring to the amendment labeled G.1, pointed
out the phrase "public health purpose" [page 1, line 9] and said
that she would add a few more adjectives to it.
CHAIR McGUIRE requested that Ms. Senner submit her preferred
changes in writing.
MS. SENNER commented:
There is also a proposed amendment for [proposed AS
18.15.385, page 11, line 16] about the right of the
individual to refuse treatment. ... As nurses, we deal
a lot with individuals that don't want to take
responsibilities for their personal acts. ... So we
had recommended to the department ... that they add a
qualifier, and I think that's one of your amendments
to this section, that if an individual does refuse
treatment, then they also need to take on the
responsibility of taking those measures to prevent the
transmission of whatever infectious disease they are
exposed to. And the department has added in there
that they should go into quarantine or isolation at
their own expense. So we would support that
amendment.
REPRESENTATIVE GRUENBERG commented that there were two
amendments that refer to page 11 of HB 95; he asked Ms. Senner
if she was referring to both of those amendments.
MS. SENNER replied that she was referring to the amendment
labeled [24-GH1002\G.5, Mischel, 3/3/05], which read:
Page 11, line 20, following "treatment.":
Insert "However, an individual who exercises the
right to refuse treatment under this subsection is
responsible for paying all costs incurred by the state
in seeking and implementing a quarantine or isolation
order made necessary by a refusal of treatment by the
individual. The department shall notify an individual
who refuses treatment under this subsection that the
refusal may result in an indefinite period of
quarantine or isolation and that the individual will
be responsible for payment of the costs of the
quarantine or isolation."
REPRESENTATIVE GRUENBERG asked for further clarification.
MS. SENNER commented that she would look over the amendments and
get back to the committee later.
CHAIR McGUIRE indicated that HB 95 would be held over.
2:59:20 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:59 PM.
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