02/01/2007 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB25 | |
| HB7 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 7 | TELECONFERENCED | |
| += | HB 25 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 1, 2007
1:08 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Ralph Samuels
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 25
"An Act relating to landowners' immunity for allowing use of
land without charge for a recreational activity; relating to
landowners' liability where landowner conduct involves gross
negligence or reckless or intentional misconduct; relating to
claims of adverse possession and prescriptive easements, or
similar claims; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 7
"An Act relating to false caller identification."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 25
SHORT TITLE: RECREATIONAL LAND USE LIABILITY/ADV. POSS
SPONSOR(s): REPRESENTATIVE(s) SEATON, WILSON
01/16/07 (H) PREFILE RELEASED 1/5/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) RES, JUD
01/24/07 (H) RES AT 1:00 PM CAPITOL 124
01/24/07 (H) Moved Out of Committee
01/24/07 (H) MINUTE(RES)
01/25/07 (H) RES RPT 8DP
01/25/07 (H) DP: GUTTENBERG, EDGMON, SEATON,
KAWASAKI, WILSON, ROSES, JOHNSON, GATTO
01/31/07 (H) JUD AT 1:00 PM CAPITOL 120
01/31/07 (H) Heard & Held
01/31/07 (H) MINUTE(JUD)
02/01/07 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 7
SHORT TITLE: FALSE CALLER IDENTIFICATION
SPONSOR(s): REPRESENTATIVE(s) LYNN, GARDNER
01/16/07 (H) PREFILE RELEASED 1/5/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) JUD
01/22/07 (H) JUD AT 1:00 PM CAPITOL 120
01/22/07 (H) Scheduled But Not Heard
01/24/07 (H) JUD AT 1:00 PM CAPITOL 120
01/24/07 (H) Heard & Held
01/24/07 (H) MINUTE(JUD)
01/31/07 (H) JUD AT 1:00 PM CAPITOL 120
01/31/07 (H) Heard & Held
01/31/07 (H) MINUTE(JUD)
02/01/07 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE PAUL SEATON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as a prime sponsor of HB 25.
DIRK MOFFATT, Staff
to Representative Bob Lynn
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 7 on behalf of Representative
Lynn, one of the bills' prime sponsors.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Answered questions and offered comments
during hearing on HB 7.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:08:08 PM. Representatives Lynn, Holmes,
Gruenberg, Dahlstrom, Coghill, and Ramras were present at the
call to order. Representative Samuels arrived as the meeting
was in progress.
HB 25-RECREATIONAL LAND USE LIABILITY/ADV. POSS
1:09:06 PM
CHAIR RAMRAS announced that the first order of business would be
HOUSE BILL NO. 25, "An Act relating to landowners' immunity for
allowing use of land without charge for a recreational activity;
relating to landowners' liability where landowner conduct
involves gross negligence or reckless or intentional misconduct;
relating to claims of adverse possession and prescriptive
easements, or similar claims; and providing for an effective
date."
1:09:37 PM
REPRESENTATIVE PAUL SEATON, Alaska State Legislature, speaking
as a joint prime sponsor of HB 25, offered his hope that his
memorandum dated February 1, 2007 addressed questions raised at
the previous committee hearing. He pointed out that Legislative
Legal and Research Services has stated that to include
trespassing provisions would "complicate the bill." He
requested that the aforementioned provisions be included in a
different piece of legislation.
CHAIR RAMRAS commented that a lack of "no trespassing" signs
offers broader access to land that might not be utilized
otherwise, and noted his reluctance to walk across property that
says "no trespassing."
REPRESENTATIVE SEATON concurred, adding that the whole purpose
of HB 25 is to provide landowners with more security, along with
a basic understanding that if free public access to privately
owned land is allowed, the landowner will not be sued for
negligence.
CHAIR RAMRAS offered his understanding that his business would
be covered under HB 25 because it has a privately owned boat
dock which the public is allowed to use. He noted that there
are no "no trespassing" signs posted, adding that he would be
disappointed if his business was sued as a result of providing
free access for recreational purposes. He therefore asked to be
excused from voting on this issue.
REPRESENTATIVE LYNN and REPRESENTATIVE GRUENBERG objected; thus
requiring Chair Ramras to vote.
REPRESENTATIVE SEATON, in response to a question from Chair
Ramras, explained that currently, if an individual owns
"unimproved land," the same protections apply. He stated that
the definition of "improved" versus "unimproved" has been
determined different ways for different court cases.
REPRESENTATIVE HOLMES, referring to Section 1(a), requested
clarification as to the meaning of "indirectly allow."
1:13:41 PM
REPRESENTATIVE SEATON explained that originally, the bill
required "oral or written permission." He explained that this
was too restrictive for the situations that occur across the
state. Legislative Legal and Research Services, he said, came
up with the current language as a way to address areas where a
person is not available to give "oral or written permission,"
such as hiking and ski trails.
REPRESENTATIVE HOLMES questioned at what point a person would be
"indirectly allowing" trespassing.
REPRESENTATIVE SEATON surmised that this is specific to each
case. He stated that he is able to explain the intent of the
law; however, a judge would look at the specific fact and case
findings in order to decide this.
1:16:44 PM
REPRESENTATIVE HOLMES offered her understanding that an
individual who does not attempt to post "no trespassing" signs
or simply doesn't care is covered, while all others are a
separate issue.
REPRESENTATIVE SEATON replied that this is correct.
REPRESENTATIVE COGHILL asked whether land without a strict
prohibition may be used without any notification.
REPRESENTATIVE SEATON offered his belief that the bill doesn't
address this. He explained that this bill simply addresses the
landowner's duty of care. Referring to information included in
members' packets, he pointed out that many other states have
passed similar legislation. Gross negligence and intentional
misconduct are not allowed. He said "There's nothing in here
that is saying that anyone has a right to use your land. It
just says that if someone is using your land with your indirect
or direct permission, your duty is not to go out and Sheppard
them around and make sure they don't get hurt. ... On simple
negligence, it's their responsibility."
1:18:57 PM
REPRESENTATIVE COGHILL opined that once this type of language is
in statute, it becomes a barrier.
[Following was brief introduction by participants of the Junior
Alaska Close Up program from North Pole, Alaska, and Hoonah,
Alaska.]
1:21:26 PM
REPRESENTATIVE GRUENBERG offered his understanding that "direct
and indirect" is a term of art used in regard to "contempt of
court," and is not used in torte law. He expressed concern
regarding this phrase, and surmised that lawyers and judges
would not understand the intent behind it. He suggested that an
alternate phrase be considered, such as "explicitly or
implicitly allows a recreational activity." He gave a brief
interpretation of the aforementioned phrase.
REPRESENTATIVE SEATON replied that he is not sure that the
aforementioned terms are appropriate.
REPRESENTATIVE HOLMES suggested adding the phrase "a landowner
who does not prohibit recreational activity." She opined that
this would include a situation in which a landowner is unaware
that the land is being utilized for recreational purposes, who
has not posted any signs prohibiting such activity.
1:25:01 PM
REPRESENTATIVE SEATON offered his belief that this language
would change the dynamics of the bill. The intent is not to
allow use of private land unless prohibited, but rather to
eliminate the simple negligence standard, if the use is directly
or indirectly allowed.
REPRESENTATIVE DAHLSTROM commented that Legislative Legal and
Research Services advised that this language be used, and
offered her belief that changing this language would change the
intent of the bill.
REPRESENTATIVE COGHILL said:
That was the point of trying to get it on the record.
Because, if ever it does go to court, one of the
things they ... try to do ... is figure out: What was
the intention? And if ... we're going to put a strict
prohibition, that if somebody prohibits [use of land],
and give this liability, I am fearful that then, we
say "all comers on my property, unless I strictly
prohibit." And I don't know that we want to start
down that road. However, if you've allowed certain
accesses on your land ... I would hate to think that
someone felt that they had a right to that piece of
property, just because you allowed certain things. I
am concerned about that.
REPRESENTATIVE HOLMES agreed with this concern. She reiterated
an earlier statement that this does not give permission to use
private land. She stated that this broadens the landowner
protections. In response to a question from Chair Ramras, she
restated and explained her earlier suggestion to replace
"directly or indirectly allows" with "does not prohibit."
1:29:56 PM
CHAIR RAMRAS said that he is uncomfortable with this language.
In regard to "explicit or implicit," he stated that he does not
find this "superior" to the language drafted by Legislative
Legal and Research Services. As a layperson, he said, he finds
the current language to be clearer.
REPRESENTATIVE GRUENBERG commented that an individual who is
"prohibited" is not given many rights. He opined that only
those who are not trespassers are given rights.
1:32:45 PM
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
REPRESENTATIVE GRUENBERG, continuing on, stated that if a person
is not trespassing, he or she may sue. The question, he said,
is in regard to the standard of negligence that must be shown.
He has not seen any examples of a "simple negligence standard."
He opined that HB 25 simply raises the "simple negligence
standard" to a "gross negligence standard."
REPRESENTATIVE SEATON said that "trespass" means that an
individual "knowingly remained on the premises after personally
being ordered to leave, and recklessly disregarded the lawful
order that [he or she] not remain. The bill is intended to
apply to landowners who allow free recreational use of private
land. He added that this does not eliminate negligence for any
other situations.
REPRESENTATIVE GRUENBERG pointed out that, if passed, this
legislation would be used as the basis of jury instruction.
Therefore, it must be easily understood.
The committee took an at-ease from 1:37 p.m. to 1:38 p.m.
1:37:56 PM
REPRESENTATIVE GRUENBERG reiterated that the language must be
"clear and easily understood."
REPRESENTATIVE HOLMES commented that "a landowner that does not
prohibit" broadens the statute beyond the sponsor's original
intent.
REPRESENTATIVE GRUENBERG commented that the term "allow" is a
"good term." He surmised that a person may allow something
without verbal permission, and added that the goal is to find a
term which clearly states this.
REPRESENTATIVE COGHILL suggested that a Legislative Legal and
Research Services drafter come before the committee to address
the aforementioned concerns, as well as the Department of Law
(DOL). He stated that, generally, the intention of government
is to prohibit activities. He pointed out that in HB 25, the
language in the body of the bill is "negative," while the
language in the enabling paragraph is not. He said "I think
before we start wandering off into how we have a positive
statement in a negative manner, we want to take a look at that."
1:41:11 PM
VICE CHAIR DAHLSTROM suggested that the bill be brought before
the committee at the next hearing, allowing time for the
sponsor(s) to meet with Legislative Legal and Research Services.
REPRESENTATIVE SEATON agreed with this. He explained that
"directly or indirectly" was left in the bill to allow for case-
by-case consideration.
VICE CHAIR DAHLSTROM suggested that any additional questions be
submitted in writing to Chair Ramras and Representative Seaton.
REPRESENTATIVE GRUENBERG opined that adding a definition of
"directly or indirectly" to the bill would be helpful.
[HB 25 was held over.]
HB 7-FALSE CALLER IDENTIFICATION
1:43:20 PM
VICE CHAIR DAHLSTROM announced that the final order of business
would be HOUSE BILL NO. 7, "An Act relating to false caller
identification."
REPRESENTATIVE LYNN, speaking as a prime sponsor of HB 7, noted
that a conceptual amendment would be offered in an effort to
address concerns brought up at a previous committee hearing.
1:44:18 PM
DIRK MOFFATT, staff to Representative Bob Lynn, Alaska State
Legislature, one of the bills' prime sponsors, explained that
the conceptual amendment before the committee was intended to
address multiple caller identification offenses. A person who
exceeds five offenses is guilty of a class A misdemeanor. If a
person enters false information into a system which
automatically calls thousands of people, each display would
count as one offence. If this information is entered into an
individual call system the same rule would apply. Each display
on the caller ID screen would be considered a separate act,
regardless of whether or not the information is the same.
REPRESENTATIVE COGHILL inquired as to the difference between a
class A misdemeanor and a class B misdemeanor.
MR. MOFFATT explained that a "class A misdemeanor" carries a
sentence of up to one year in prison, while a "class B
misdemeanor" carries a three month sentence.
1:47:16 PM
VICE CHAIR DAHLSTROM questioned whether Representative Samuels
had seen conceptual amendment 5.
REPRESENTATIVE COGHILL asked that the bill be held over, in
order to give Legislative Legal and Research Services time to
incorporate any conceptual amendments that may be adopted, thus
allowing the committee to "look at it in context."
REPRESENTATIVE LYNN agreed that this would be a good idea.
1:49:12 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
expressed concern with the addition of "intent to defraud or
cause harm." She stated that "intent to defraud" is defined in
[AS 11.46.990]; however "cause harm" is unclear. She offered
her understanding that this is used in federal law, although it
is not a term used in state criminal law. She recommended the
removal of this language, as "intent to defraud" is broadly
defined and would most likely cover the instances in question.
REPRESENTATIVE GRUENBERG stated that the aforementioned statute
should be referenced in HB 7.
MS. CARPENETI agreed. In regard to the penalty, she suggested
that in Section 2(c), language similar to "violation of A of
this section is a class B misdemeanor, if the information is
forwarded to less than 25 telephones, and it's a class A
misdemeanor if the information is forwarded to 25 or more
telephones" be added.
1:51:32 PM
MS. CARPENETI, in response to a question from Vice Chair
Dahlstrom, explained that the definition of "intent to defraud"
be inserted after line 5 on page 2. In addition, she explained
that line 4 of page 1 be reworded to reflect this language.
REPRESENTATIVE GRUENBERG asked if this would be incorporated
into the new committee substitute (CS).
VICE CHAIR DAHLSTROM replied yes.
MS. CARPENETI also agreed.
REPRESENTATIVE GRUENBERG stated that he does not object to this.
REPRESENTATIVE DAHLSTROM noted that this would be conceptual
Amendment 6.
[Although no formal motion was made, conceptual Amendment 6 was
treated as adopted.]
REPRESENTATIVE GRUENBERG pointed out that an amendment is needed
to delete the phrase "or cause harm." He explained that
"spoofing" means to use another persons name and phone number in
order to give a misimpression of who is actually calling. This
might be done for a variety of reasons, he said, adding that to
defraud is only one reason. He commented that this may also be
used to stalk, intimidate, or threaten. He opined that "intent
to defraud" narrows the scope of the bill.
1:54:32 PM
MS. CARPENETI, referring to AS 11.46.990, reiterated that the
definition of "intent to defraud" is "pretty broad," and opined
that this would cover the aforementioned situations.
REPRESENTATIVE GRUENBERG said that while he has no objection to
this, he would like to ensure that no cases unintentionally
"fall between the cracks."
MR. MOFFATT agreed.
VICE CHAIR DAHLSTROM stated her intention to hold the bill until
the next committee hearing, thus allowing the sponsor(s) time to
meet with members to address concerns, in addition to addressing
the aforementioned conceptual amendments. She noted that
conceptual amendment 5 was not moved or adopted.
1:57:12 PM
REPRESENTATIVE LYNN, referring to Conceptual Amendment 5,
suggested changing the minimum for a class A misdemeanor from 5
to 25.
VICE CHAIR DAHLSTROM recommended incorporating this into [a
committee substitute (CS)].
MS. CARPENETI, in response to a question from Representative
Gruenberg, offered her understanding that the ability to obtain
phone records makes it easier to prosecute these cases. She
said "if you have one piece of information ... that reached
1,000 phones, I don't know that it would be that difficult to
get the records to prove that."
REPRESENTATIVE GRUENBERG suggested that this be considered prior
to the next meeting.
VICE CHAIR DAHLSTROM requested that the sponsor(s) research this
issue in order to come up with a reasonable number.
[HB 7 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 1:59 p.m.
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