Legislature(2003 - 2004)
04/02/2004 09:10 AM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 2, 2004
9:10 a.m.
TAPE(S) 04-32,33
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
Senator Gene Therriault
COMMITTEE CALENDAR
SENATE BILL NO. 319
"An Act relating to claims for personal injury or wrongful death
against health care providers; and providing for an effective
date."
SENATE BILL NO. 323
"An Act relating to a project owner's liability for workers'
compensation and the exclusiveness of liability for workers'
compensation."
SENATE BILL NO. 170
"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."
PREVIOUS COMMITTEE ACTION
BILL: SB 319
SHORT TITLE: CLAIMS AGAINST HEALTH CARE PROVIDERS
SPONSOR(s): SENATOR(s) SEEKINS
02/11/04 (S) READ THE FIRST TIME - REFERRALS
02/11/04 (S) L&C, JUD
03/02/04 (S) L&C AT 1:30 PM BELTZ 211
03/02/04 (S) Heard & Held
03/02/04 (S) MINUTE(L&C)
03/11/04 (S) L&C AT 1:30 PM BELTZ 211
03/11/04 (S) Moved SB 319 Out of Committee
03/11/04 (S) MINUTE(L&C)
03/12/04 (S) L&C RPT 2DNP 3NR
03/12/04 (S) NR: BUNDE, SEEKINS, STEVENS G;
03/12/04 (S) DNP: FRENCH, DAVIS
03/17/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/17/04 (S) Heard & Held
03/17/04 (S) MINUTE(JUD)
BILL: SB 323
SHORT TITLE: WORKERS COMPENSATION AND CONTRACTORS
SPONSOR(s): SENATOR(s) SEEKINS
02/13/04 (S) READ THE FIRST TIME - REFERRALS
02/13/04 (S) L&C, JUD
03/04/04 (S) L&C AT 1:30 PM BELTZ 211
03/04/04 (S) Heard & Held
03/04/04 (S) MINUTE(L&C)
03/09/04 (S) L&C AT 1:30 PM BELTZ 211
03/09/04 (S) Moved SB 323 Out of Committee
03/09/04 (S) MINUTE(L&C)
03/10/04 (S) L&C RPT 2DP 2NR 1AM
03/10/04 (S) DP: BUNDE, SEEKINS; NR: DAVIS,
03/10/04 (S) STEVENS G; AM: FRENCH
03/17/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/17/04 (S) Heard & Held
03/17/04 (S) MINUTE(JUD)
04/02/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: SB 170
SHORT TITLE: CRIMINAL LAW/SENTENCING/ PROBATION/PAROLE
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
04/04/03 (S) READ THE FIRST TIME - REFERRALS
04/04/03 (S) JUD, FIN
04/11/03 (S) JUD AT 1:30 PM BELTZ 211
04/11/03 (S) <Bill Hearing Postponed to 4/14/03>
04/14/03 (H) JUD AT 1:00 PM CAPITOL 120
04/14/03 (S) Scheduled But Not Heard
04/15/03 (S) JUD AT 5:00 PM BELTZ 211
04/15/03 (S) Heard & Held
04/15/03 (S) MINUTE(JUD)
04/24/03 (S) JUD AT 4:00 PM BUTROVICH 205
04/24/03 (S) Heard & Held
04/24/03 (S) MINUTE(JUD)
05/14/03 (S) JUD AT 0:00 AM BELTZ 211
05/14/03 (S) -- Meeting Postponed to 5/15/03 --
05/15/03 (S) JUD AT 8:45 AM BELTZ 211
05/15/03 (S) -- Meeting Rescheduled from 5/14/03 --
05/16/03 (S) JUD AT 1:00 PM BELTZ 211
05/16/03 (S) <Above Item Removed from Agenda>
05/16/03 (S) MINUTE(JUD)
03/05/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/05/04 (S) <Bill Hearing Postponed>
03/10/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/10/04 (S) Heard & Held
03/10/04 (S) MINUTE(JUD)
03/12/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/12/04 (S) Heard & Held
03/12/04 (S) MINUTE(JUD)
03/24/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/24/04 (S) Heard & Held
03/24/04 (S) MINUTE(JUD)
03/29/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/29/04 (S) -- Meeting Canceled --
03/31/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/31/04 (S) Heard & Held
03/31/04 (S) MINUTE(JUD)
03/31/04 (H) JUD AT 1:00 PM CAPITOL 120
03/31/04 (S) Heard & Held
03/31/04 (S) MINUTE(JUD)
WITNESS REGISTER
MR. DEAN GUANELI, Chief Assistant Attorney General
Criminal Division
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Opposed amendment 2 and commented on
Amendment 3 to SB 170.
MS. LINDA WILSON, Deputy Director
Public Defender Agency
Department of Administration
PO Box 110200
Juneau, AK 99811-0200
POSITION STATEMENT: Supports SB 170.
Ms. Kathy Dale CPA
Anchorage, Alaska
POSITION STATEMENT: Opposes SB 319.
Mr. Richard Louie
British Petroleum
Anchorage, AK
POSITION STATEMENT: Opposes SB 319.
Ms. Pamela LaBolle, President
Alaska State Chamber of Commerce
217 Second St. Ste. 201
Juneau, AK 99801
POSITION STATEMENT: Supports SB 323.
Mr. Jack Miller, Attorney
State Chamber of Commerce
217 Second St. Ste. 201
Juneau, AK 99801
POSITION STATEMENT: Supports SB 323.
Ms. Eden Larson, President & CEO
Associated Builders and Contractors
No address provided
POSITION STATEMENT: Supports SB 323.
ACTION NARRATIVE
TAPE 04-32, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 9:10 a.m. Senators Therriault,
Ogan, French and Seekins were present. The first order of
business to come before the committee was SB 170.
SB 170 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
SENATOR OGAN moved to adopt version I as the working document
before the committee. Without objection, the motion carried.
MR. DEAN GUANELI, Chief Assistant Attorney General, Criminal
Division, Department of Law, thanked the committee for the hard
work it has done on SB 170. He then offered to answer questions.
CHAIR SEEKINS asked Mr. Guaneli to standby because the committee
was given two proposed amendments from the Public Defender's
Office on short notice.
SENATOR OGAN referred to Section 17 on page 10 of version I,
regarding violation of custodian's duties, and said he
understands the intent but has spoken with foster parents who
have ended up being third parties for foster children who got in
trouble. He said the intent is to go after people who blatantly
disregard their duty and are not diligent about holding the
released party accountable. He said Senator French made some
excellent points about the risk to the public when people fall
down on those duties. He pointed out that in reality, some
infractions do not get reported. For example, if the court
orders the offender to be at home by 10:00 and the custodian
does not report the offender at 10:01 for not being home, the
custodian could be guilty of a class A misdemeanor if the
offender was a felon. He expressed concern that the idea is to
hold people accountable and not to criminalize every minor
infraction, but the bill is not written that way.
MR. GUANELI said he had a couple of responses to Senator Ogan's
concerns. He said he does not believe Section 17 covers a
situation of foster parents whose children get in trouble. Line
12 specifically refers to a person released under AS 12.30,
which are the bail statutes. He said theoretically that could
involve someone under 18 who is charged with drunk driving, but
most juvenile offenses are dealt with in juvenile court, which
falls under Title 47. He continued:
If the court says something like 'be in at dark,' I
think there's a range of reasonableness that has to be
applied but if a judge thinks it's important enough
that a person have a specific curfew at a specific
hour, then I guess then the question is - and the
judge directs the custodian, you know, if this person
isn't in by 10:00, I'm ordering you to immediately
report that to the police - are you willing to do
that? Yes I am, your honor. You understand that there
are penalties associated with that? Yes I do, your
honor, and I'm still willing to do that.
I guess to me it's a judicial decision that 10:00 is
more important than 10:01 and I'd rather leave it to
the judge to make that decision than someone who has
undertaken responsibility and given a promise to the
judge that they would undertake that responsibility.
And when you're talking about people who are released
on felony offenses, I think that that is a weighty
responsibility. I know the judge is always very good
about making sure the custodian understands their
duties so I guess I'd have to say I think the system
works by allowing the judge to make a determination
whether 10:00 is so important or whether daylight
hours, which gives them a little more flexibility.
That's my response.
CHAIR SEEKINS said he agrees that with adult offenses where the
conditions of release are the conditions of imprisonment, they
would have no leeway if they were in jail. He said if he agreed
to take on a certain responsibility, he should live up to the
terms of that agreement. He believes that provision was meant to
protect the public as much as anything else. He then said when
one talks about the boundaries of an infraction, the infraction
becomes a whole new term.
SENATOR FRENCH said the Municipality of Anchorage has had this
law on its books for a couple of years at least and he is not
aware of any third party custodians being egregiously
overcharged. He said the legislation is crafted to relate the
penalty to the offense and every person has the right to go
before a jury if charged with a crime. He doubted a jury would
convict a person for not reporting a 10:01 violation on a 10:00
curfew.
SENATOR THERRIAULT said a constituent asked him to consider a
potential amendment. The constituent is a referee who was
assaulted by a parent as the result of his officiating a game.
The constituent asked him to consider creating a heightened
crime for assaulting a sports official. He countered by saying
he would consider adding that crime to the list of aggravators
for sentencing. The legal drafters suggested adding a number 31
to AS 12.55.155. He read the proposed amendment:
The defendant knowingly directed the conduct
constituting the offense at a sports official or
referee during or because of the exercise of duties as
a sports official or referee.
He asked Mr. Guaneli if he had any comments on whether such an
amendment would be workable.
MR. GUANELI said that when presumptive sentencing circumscribes
the sentencing discretion, an aggravating factor can allow the
judge to go beyond that. Aggravating factors currently apply to
those who knowingly direct illegal conduct toward a police
officer or emergency responder. He noted that a few bills were
recently introduced to expand the coverage to include teachers,
education officials and possibly clergymen. He said the concern
is whether the legislature wants to expand aggravating factors
that were provided for people involved in inherently dangerous
occupations to a wider range of activities that people engage
in. He said that is a matter of legislative policy. He concluded
that when the judges feel the conduct is egregious enough, the
judge has the sentencing authority to address that so he was not
certain that expanding those protections to a referee is
necessary to achieve justice.
SENATOR OGAN said he has trouble creating different classes of
people for which a crime is elevated because of that particular
class of person. He believes the elevated level is justified for
police officers and emergency responders because they must put
themselves in harms way.
SENATOR FRENCH shared Senator Ogan's concerns and said that
judges know when an outrageous crime has happened in their
communities, which could include a crime against a referee.
CHAIR SEEKINS jested that he has found sports officials to be
very aggravating at times.
SENATOR THERRIAULT said he did not intend to distribute the
amendment and was asking to determine the correct policy call.
SENATOR FRENCH moved to adopt Amendment 1, which reads as
follows.
A M E N D M E N T 1
OFFERED IN THE SENATE
To: CSSB 170(JUD) Work Draft 23-GS1024\I 4/1/04
Page 9, line 15
1(4) with criminal negligence and when as determined by a
chemical test taken within four hours after the alleged offense
was committed, there is 0.05 percent or more by weight of
alcohol in the person's blood or 50 milligrams or more of
alcohol per 100 milliliters of blood, or when there is 0.05
grams or more of alcohol per 210 liters of the person's breath,
causes serious physical injury under AS 11.81.900(55)(B) to
another person by means of a dangerous instrument.
CHAIR SEEKINS objected for the purpose of discussion and asked
for a cross-reference to the correct page in version I.
SENATOR FRENCH said it would replace language on page 9, line
15. He then said the idea is to avoid prosecuting the "cell
phone, make-up application on slippery roads" scenarios that
could cause car collisions that might result in a charge of
assault in the third degree. It narrows the scope of the bill to
those instances where there's enough alcohol involved to justify
a finding of criminal negligence. He said in his experience, .05
percent amounts to at least three or four beers.
MR. GUANELI read the definition as follows:
Serious physical injury means a physical injury caused
by an act performed under circumstances that create a
substantial risk of death or physical injury that
causes serious and protracted disfigurement,
protracted impairment of health, protracted loss or
impairment of the function of a body member, organ or
that unlawfully terminates a pregnancy.
He explained that as a practical matter, that often amounts to
an injury more serious than a broken limb because most juries do
not find a broken limb to be a protracted loss. He said the
quintessential example of a serious physical injury is someone
who ends up in a wheelchair.
SENATOR FRENCH said the annotated statutes say that a broken jaw
constitutes a serious physical injury and a grand jury could
find injuries to the eyes and skull to be serious physical
injuries. He said the (a) subsection is more inclusive and the
(b) subsection is fairly narrow.
CHAIR SEEKINS asked Ms. Wilson to testify.
MS. LINDA WILSON, Deputy Director, Public Defender Agency,
Department of Administration, said the effort made to trim down
the definition of "serious physical injury" is in subsection
(a), which requires physical injury caused by an act performed
under circumstances that create a substantial risk of death. She
said anything involving a car accident creates a risk of death
so that could apply to any physical injury that resulted from an
accident. She said the definition in (a) is overly broad and
would include any scratch or bump that resulted from a car
accident. She said limiting it to the (b) definition gets to the
targeted group - that being people who sustain serious physical
injuries. She disagrees with Mr. Guaneli about what qualifies as
a serious physical injury. She added that including the alcohol
requirement pinpoints the targeted group and avoids the
unintended group, such as cell phone users.
SENATOR OGAN asked why it is narrowed to alcohol use only and
does not include drug use. He noted he would like it to apply to
marijuana and controlled substance use.
MR. GUANELI said, in regard to Senator French's comment that
this would avoid prosecutions based on cell phone use, for
example, he does not believe the state prosecutes anyone for
collisions caused by cell phone use. Senator Ogan introduced a
bill several years ago to at least allow the state to revoke a
person's license if no crime was committed but a person died as
a result of a crash. He spoke to Senator Ogan at that time about
people driving too fast on slippery roads and causing a fatality
as a result. The state simply cannot prosecute those cases
because that behavior does not rise to a prosecution level under
criminal negligence and the standard mental states. As a result,
Senator Ogan's bill was enacted but it only gives a judge the
discretion to take away someone's license. He said there is a
much more serious offense called criminally negligent homicide
but those prosecutions are very rare. He pointed out that
prosecutors nationwide simply cannot prosecute every driver in a
car crash that causes a death. Cases of death that result from
car crashes are handled under wrongful death in civil courts or
through insurance claims.
MR. GUANELI said with respect to narrowing the definition of
serious physical injury, Ms. Wilson indicated that the elements
could be met by minor injuries resulting from a car crash. He
remarked that a horrendous car crash caused by a person acting
with criminal negligence where the car is completely mangled but
only minor injuries are sustained is equally deserving of
punishment because it is only fortuitous that the person walked
away with minor injuries. The Department of Law favors the
original version. He believes this version is much too narrow
and will frustrate the department because it will be unable to
prosecute.
MS. WILSON said she sees two parts to Senator Ogan's question
about controlled substances. She explained:
Controlled substances, I believe, if you're driving I
believe with a controlled substance other than
alcohol, I think you probably could be charged under
the impairment statute, which would probably qualify
for reckless. I think you could address controlled
substances beyond alcohol, which seemed to be the
targeted group with that. On the question about that
the DAs or the prosecutors cannot prosecute, we never
prosecute, I certainly want to caution against
adopting that approach. The DAs have an incredible
amount of discretion and, unfortunately, sometimes
they charge things - they overcharge and I don't think
anybody can dispute that. I keep hearing over and over
again 'trust us, trust us, trust us' but our laws
should not depend on the discretion of a DA,
especially a single DA. These things are and can be
overcharged and to say that they're not is
disingenuous.
I haven't wanted to bring up the Wally Taslow (ph)
case but that's a perfect example of overcharging. You
had a vehicular accident, not much injury, and it was
charged much higher than it should have been so to say
that it's not overcharged is not very believable.
SENATOR OGAN said because he believed some cases were
undercharged, he introduced legislation 10 years ago. He said it
took him eight years to get that law changed.
CHAIR SEEKINS said in trying to figure out what is fair and
right, regarding public safety, that to encourage selective
prosecution is very dangerous. He said he must feel comfortable
that the intent of the legislation is the right thing to do
before he will pass the bill out of committee. He said he is
attempting to do the right thing, not what is least
controversial.
CHAIR SEEKINS reminded members that Amendment 1 was pending and
asked if there was further discussion.
SENATOR FRENCH thanked members for the discussion on Amendment 1
but said he was persuaded by Mr. Guaneli that the law as written
can be used in the right way. He then withdrew Amendment 1
without objection.
SENATOR OGAN moved to adopt Amendment 2, which reads as follows.
A M E N D M E N T 2
OFFERED IN THE SENATE
To: CSSB 170(JUD) Work Draft 23-GS1024\I 4/1/04
Page 3, line 9:
Sec. 4 AS 04.11.491 is amended by adding a new subsection to
read:
(g) If a municipality or established village has adopted a
local option under (a)(1),(2),(3), or (4), or (b)(1),(2), or (3)
of this section, the municipality or established village, as
part of the local option question or questions placed before the
voters, may
(1) adopt an amount of alcoholic beverages that may be
imported that is less than the amounts set out in AS
04.11.150(g);
(2) adopt an amount of alcoholic beverages that would
give rise to a presumption that the person possessed the
alcoholic beverages for sale; the amounts adopted under this
paragraph may be lower than those set out in AS 04.11.010(c);
(3) adopt an increased penalty for furnishing or
delivery of alcoholic beverages to persons under 21 pursuant to
AS 04.16.051(d)(3).
Page 4, lines 17-19:
Sec. 7 AS 04.16.051(d) is amended to read
(d) A person acting with criminal negligence who violates
this section is guilty of a class C felony if
(1) within the five years preceding the violation, the
person has been previously convicted under
(A) this section; or
(B) a law or ordinance of this or another
jurisdiction with elements substantially similar to this
section; [OR]
(2) the person who receives the alcoholic beverage
negligently causes serious physical injury to or the death of
another person while under the influence of the alcoholic
beverage received in violation of this section; in this
paragraph,
(A) "negligently" means acting with civil
negligence; and
(B) "serious physical injury" has the meaning
given in AS 11.81.900; or
(3) the violation occurs within the boundaries of a
municipality or the perimeter of an established village that has
adopted a local option and the increased penalty of a class C
felony under AS 04.11.491.
CHAIR SEEKINS objects for the purpose of discussion.
SENATOR OGAN says this amendment makes it a local option for
people who live in areas who have voted to be "dry" to ratchet
up the penalties for offenders who supply alcohol to minors.
Since the community has identified alcohol as a particular
problem, the "local option" part of the legislation would allow
the local community to put it on the ballot and, for example,
raise the offense from a misdemeanor to a felony.
MS. WILSON agreed that is exactly what the amendment does.
CHAIR SEEKINS asked Ms. Wilson to provide an explanation for the
amendment and the purpose for proposing it.
MS. WILSON said the point of the amendment was to let the local
option area choose how to deal with those who supply alcohol to
a minor. It lets local areas choose whether or not they want to
ratchet up the offense from a misdemeanor to a class C felony.
CHAIR SEEKINS asked Ms. Wilson if she is familiar with the
definition of an established village under statute, and pointed
out that it is any group of 25 people. He asked her if she
believes that we should allow any group of 25 people, at their
own discretion, to vary the state penalty.
MS. WILSON suggested tightening the definition of an established
village.
SENATOR FRENCH asked if the municipality or village could set
the infraction above a Class C felony, i.e., if the local option
areas could label the offense as a Class B or Class A felony.
MS. WILSON referred to section 7, which allows an increased
penalty if there are prior convictions. She suggested adding an
option in section 4 to allow for increased penalties and then
limit the increase.
SENATOR OGAN recognized that local areas must already adopt the
local option as law and questioned the criteria of an
"established village" in regards to the ages of the village
members. In that light, he is hesitant to extend too much
leeway to village members for the purpose of law interpretation.
SENATOR FRENCH proposed to amend the amendment in Sec. 4,
subparagraph 3, to read "adopt an increased penalty of a 'C'
felony for furnishing or delivery of alcoholic beverages to
persons under 21 pursuant to AS 04.16.051(d)(3)".
CHAIR SEEKINS asked and heard no objections but voiced concern
regarding the change of the level of penalty and asked for
further discussion.
MR. GUANELI said he understands from most village leaders that
there are two purposes for the local option laws, which create
immediate benefit to village society: 1) stops domestic abuse
and crimes by adults therefore lessening social problems and 2)
teaches young people that use of alcohol is unacceptable. The
long-term goal of the villagers is to limit the use of alcohol,
especially to young people. The original draft reflects these
goals. Dry villagers are particularly offended by people
supplying alcohol to minors since they made the deliberate
effort to vote the village dry. He feels this current draft
puts an additional burden on the villagers to hold additional
elections.
TAPE 04-32 SIDE B
MR. GUANELI added that he thought we ought to uphold the intent
of the villagers who voted to go dry; it ought to be an
aggravated offense and recognized as such.
CHAIR SEEKINS iterated that he is most interested in the
amendment, which could allow unincorporated groups to have too
much leeway. He also questioned the need to revise the current
penalty.
SENATOR OGAN stated the people in the villages should have the
ability of self-determination to decide whether they have a
problem and how to address the problem. This amendment serves
that purpose.
SENATOR FRENCH clarified that currently, the law states the
first offense is a misdemeanor and the second offense is a
felony. He states that the effect of the amendment basically
allows local areas the option of raising the level of the first
offense to a felony or leaving it as a misdemeanor.
SENATOR FRENCH added - to the point that the local areas decide
whether they want to be dry or not. He stated support for the
amendment.
SENATOR OGAN opined that he is willing to give the local option
but would rather the state set the penalties.
A roll call vote was taken. Amendment 2 failed with Senators
Ogan and French voting in favor and Senators Therriault and
Seekins voting against.
CHAIR SEEKINS referred to a letter received from Legal Services
and the Revisor of Statutes regarding section 32 of the current
bill.
A M E N D M E N T 3
"*Sec 32 AS 47.12.310 (c) is amended to read:
(c) A state or municipal law enforcement agency
(1) shall disclose information regarding a case that
is needed by the person or agency charged with
making a preliminary investigation for the
information of the court under this chapter;
(2) may disclose to the public information regarding
a criminal offense in which a minor is a suspect,
victim, or witness if the minor is not identified
by the disclosure;
(3) may disclose to school officials information
regarding a case as may be necessary to protect
the safety of school students and staff or to
enable the school to provide appropriate
counseling and supportive services to meet the
needs of a minor about whom information is
disclosed.
(4) Or a state or municipal agency or employee may
disclose to the public information regarding a
case as may be necessary to protect the safety of
the public; and
(5) May disclose to a victim or to the victim's
insurance company information, including copies
of reports, as necessary for civil litigation or
insurance claims pursued by or against the
victim."
CHAIR SEEKINS heard no objections to the amendment, recognized
there was also an amendment to the title and directed the
committee's focus to Section 25, which was also included as a
concern in the memorandum from Legal Services.
MR. GUANELI expressed concern over the suggested revised wording
and would prefer to have time to review it. His main concern was
about interpretation in a court of law and he wants to ensure
that the language written in the document is clear.
CHAIR SEEKINS asked that Amendment 3 be withdrawn for the
moment.
CHAIR SEEKINS asks for public testimony and hearing none SB 170
is moved out of committee.
CHAIR SEEKINS announces a 3-minute recess.
SB 319 CLAIMS AGAINST HEALTH CARE PROVIDERS
CHAIR SEEKINS announced SB 319 to be up for consideration.
Chair Seekins admitted the bill is not in its final form.
KATHY DALE, a CPA from Anchorage, said she was representing
herself and family as victims of medical malpractice. She
opposes SB 319, particularly Section 3(d). She testified
regarding her husband and his routine rotator cuff surgery.
During surgery her husband suffered permanent brain damage due
to lack of oxygen to his brain. She stated that it was only due
to being able to file a lawsuit that they were able to discover
what had caused the brain damage. She said the bill protects
doctors and harms the citizens of Alaska. She asked that the
cap not be lowered and referred to the Medical Indemnity
Corporation of Alaska (MICA) and suggested that the $250,000 cap
adjusted for inflation would exceed $800,000 in today's economy.
She said the stock market crash, along with Enron, Tyco, and
World-com type fraud caused insurance companies to raise
premiums in order to increase funds. She compared this with the
state's problem with the PERS system and asked to consider
forming a fund such as MICA.
SENATOR OGAN stated he is familiar with MICA but asked for
clarification.
MS. DALE explained it as a self-insurance pool that the doctors
owned and the state loaned them funds to get started. She said
the pool was so successful that the dividend was too high and
would impact the doctor's taxes so they asked that the pool be
disbanded.
SENATOR OGAN asked if any other states have that type of system.
MS. DALE answered she is not aware of any others.
CHAIR SEEKINS stated that he is familiar with the history of
MICA, and referred to a conversation with Senator Taylor that
confirmed Ms. Dale's testimony regarding MICA.
SENATOR FRENCH asked Ms. Dale to talk about the financial impact
resulting from her husband's injury.
MS. DALE said her husband was a business owner. He is no longer
capable of doing even small jobs around the house. He is no
longer employable, has limited memory, and needs daily care. He
can drive a car.
CHAIR SEEKINS asked for clarification on Ms. Dale's testimony
and asked, "Was the difference in cap how you were able to
retain representation to bring the lawsuit?"
MS. DALE answered yes.
CHAIR SEEKINS asked, "What made the difference, the fee that
would retain the attorney?"
MS. DALE answered no and stated it was the out-of-pocket
expenses to send the records to experts in the field of
anesthesiology to review what happened.
CHAIR SEEKINS asked who sent the records out.
MS. DALE answered "our attorneys."
CHAIR SEEKINS asked for any further comment and clarified that
Ms. Dale was only representing herself and family and traveled
to Juneau at her own expense.
CHAIR SEEKINS invited anyone else from out of town to testify at
this time so that they would not be impacted if the committee
holds this over.
DONNA MCCREADY testified and identified herself as a plaintiff's
attorney who does some medical malpractice work. She stated she
is representing the Alaska Academy of Trawlers. She said there
are 2 different positions 1) those who want to lower the cap and
2) those who think there is not a medical malpractice crisis.
She placed herself in the second category. She asked how the
committee figures out [how to come out] its position on the
bill. She stated there is no data to support that Alaska has a
medical malpractice crisis, no data to support the statement
that doctors are leaving the state due to this. She suggested
that tons of data support the fact that malpractice carriers are
doing very well financially and that there are two main carriers
in this state NORCAL and MIEC (ph). She handed out material to
committee members showing the financial status of both carriers
and pointed out a report from the Legislative Research
Department that shows data to support her claim of an increase
of doctors actively practicing in Alaska. She cited Providence
Insurance information, which shows that 70% of doctors
practicing in Alaska are not recruiting doctors to work in the
state but the 30% who are do not have trouble doing so. She
stated that legislative research shows that doctors are
attracted to working in Alaska because we don't have managed
care here.
CHAIR SEEKINS said he has seen much of this information before
but also recognizes they have never received one of the
documents that she distributed, although the documents say they
were delivered on Dec 18. He said he cannot use this data
because it isn't detailed enough. "Someone threw me a pitch,
but not where I can hit it."
MS. MCCREADY referred to the tort reform of 1997 and suggested
the committee look to the Division of Insurance to explain the
numbers.
CHAIR SEEKINS said he appreciated her bringing in the data and
has seen much data regarding this issue but most of it is
excerpted. He asked that all parties submit to the committee
good data with the complete report, not just "page 9 page 13,
page 15." He says he sees a huge gap between the number of
licensed doctors and the number of practicing doctors.
MS. MCCREADY responded that in terms of the medical board, a
survey with physicians 55 & older were asked if they felt their
specialties were underrepresented and 66% answered no.
CHAIR SEEKINS said licensed may not mean practicing and he does
not want to argue that point. He said the committee has one
more witness who needs to speak today. He assured his
willingness to look at all the data.
SENATOR FRENCH thanked Ms. McCready for her testimony and
referred to a March 26 report regarding the old MICA Corporation
on Page 8, which says an average of 210 doctors per year have
been licensed to work in the state. He said new doctors don't
usually get a license and then become inactive.
CHAIR SEEKINS recognized that they can be licensed in other
states or numerous states even and don't ever practice here.
MS. MCCREADY pointed out that some doctors might practice in
more than one state.
CHAIR SEEKINS said he knows a couple of doctors who come up for
vacation and are specialists so they can make a little money
while they are here.
MR. RICHARD LOUIE said he worked 20 years at BP as a scientist
and auditor and stated his doctor did not inform him of risks.
He asked the committee to vote no on SB 319.
SENATOR OGAN asked Mr. Louie if he was the gentleman who had a
blood clot during an aircraft flight.
MR. LOUIE answered yes.
CHAIR SEEKINS asked for any further questions for Mr. Louie.
Hearing none, he advised that the committee wants as much
testimony as possible. He stated that the House is working on
it as well and he doesn't want to duplicate the effort.
SB 323 WORKERS COMPENSATION AND CONTRACTORS
CHAIR SEEKINS announced SB 323 to be up for consideration and
informed the committee of a proposed CS, version\H.
SENATOR OGAN asked to have the changes explained before a motion
is made.
CHAIR SEEKINS explained the changes are in language to make it
clear that if a subcontractor does not carry workmen's
compensation insurance, the contractor is liable for it. If the
contractor does not carry workers compensation insurance then
the project owner would be responsible. The next part clarifies
who is a contractor and who is a project owner. He says we do
have statutes that require contractors to be registered with the
state. He states the intent of the bill is very clear.
MS. PAMELA LABOLLE said the Chamber of Commerce suggested the
amendments that are contained in this committee substitute for
the purpose of clarification. Discussions with many parties
identified that the language caused confusion, which is now
clarified. She says they want to make certain that all
interested parties in a project will assure their employees are
covered. She cited instances where injured employees received
worker's compensation and then later under tort law and filed
suits against other interested parties who were not clearly
covered under the worker's compensation umbrella.
I think no one intended the worker's compensation law
to be used this way. The idea is the worker be covered
for their work-related losses. It's also important for
the safety factor because the only way the project
owner could stay out of the issue was if they were not
actively involved. They could not assess or assure
that the contractor and subcontractor had good safety
practices because, in so doing, they became an
involved person or involved party and they were then
able to be sued because they did not directly have
compensation coverage or had not assured that the
other parties all had coverage. And so that was the
purpose of the bill is to make sure that everybody in
the chain was involved and insured. And secondly to
eliminate the ability for them to go back and double
dip and collect payments from two sources, from both
the worker's compensation law and the courts for tort.
CHAIR SEEKINS asked for questions.
SENATOR FRENCH said:
I go back to a letter we got from Mr. Jack Miller a
month or so ago regarding how this bill would change
the obligation of parties to procure workman's
compensation coverage and in his letter he said, 'The
bill would have no effect on the obligation of parties
to procure workman's compensation coverage. As you
know with very few exceptions, current law requires
all employees...'
Tape 04-33 Side A
SENATOR FRENCH continued and said you're required to carry
worker's compensation and that requirement is not affected by SB
323. He wondered whether something in the CS has changed the
obligation of the parties to get worker's compensation coverage.
CHAIR SEEKINS said, "Mr. Miller is online but I don't think so."
MS. LABOLLE said no it does not change that. The employers have
to have worker's compensation coverage.
SENATOR FRENCH said he has difficulty with the bill in that you
get no more coverage but the worker is giving up his ability to
sue project owners who may or may not be covering him with
worker's compensation. He said what the worker is getting is no
more coverage in exchange for giving up his right to sue in
tort.
CHAIR SEEKINS said absolutely not.
SENATOR FRENCH said it strikes him that the worker is giving up
his right to sue in tort in exchange for no more coverage. He
doesn't see how a worker gains anything with this bill.
CHAIR SEEKINS stated that he has seen a number of instances that
would relate to this bill, such as cases where someone claims to
be a sole proprietor and then later claims to be an employee.
He goes on to say that the project owner who hires a contractor
or a contractor who hires a subcontractor will have to make sure
that workmen's compensation exists because if they do not, the
project owner has to provide it.
CHAIR SEEKINS asked for Mr. Miller online.
MR. JACK MILLER, attorney for the State Chamber of Commerce,
said that even though state law requires everyone to have
worker's compensation doesn't mean they all do. By extending the
obligation to provide workmen's compensation coverage all the
way up the project line to the project owner does enhance the
benefits to the employees who suffer injuries. Under current
law because of tort claim potential, project owners and
contractors all refuse to take an integrated approach to project
safety. He thinks the law is important because it gives an
incentive for all parties involved in the project to integrate
their safety practices and reduce work related injuries.
CHAIR SEEKINS announced the need to do some housekeeping and
asked for a motion to consider the proposed CS, labeled version
H, before the committee.
SENATOR THERRIAULT moved to adopt version H, dated 4/1/04, as
the working document before the committee.
CHAIR SEEKINS heard no objections. He responded to Mr. Miller's
announcement that he does not have a copy of version H by
offering to get him a copy. He asked Mr. Miller to respond to
Senator French's question regarding what is an employee getting
by not being able to sue someone up the line.
MR. MILLER said they are getting two things: 1) if their
employer does not have worker's comp coverage that obligation is
transferred to the contractor and the project owner. Says there
are situations where this has happened before and current law
does not address that; 2) this is an opportunity to get rid of
the disincentive for project owners, contractors, and sub-
contractors to alienate themselves as far as state work
practices go. This allows participants to coordinate safety
activities. He believes this is an important opportunity to
dramatically reduce work related injuries.
SENATOR OGAN asked how this affects a homeowner building his own
house who has a sub-contractor do a few things.
MR. MILLER said it excludes anyone who is a project owner who is
not engaged in business. A homeowner is not liable under this
statute.
MS. EDEN LARSON identified herself as President and CEO of the
Associated Builders and Contractors, an association with over
160 member companies who employ approximately 5000 employees
throughout the state. She supports SB 323 and adds further
comment on Ms. LaBolle's statements.
What happens to a contractor when an employee receives
a workman's compensation claim and then pursues tort
remedies thru the project owner, the project owner in
most cases today has included in his contract with the
contractor an indemnification agreement. What happens
is that if the tort claim is successful the contractor
is then liable to the project owner to reimburse and
indemnify the project owner for the cost of that tort
settlement. The contractor is then consistently caught
paying both the compensation costs as well as the
court costs. And this is a remedy to that problem the
situation that occurs regularly for construction
today.
Chair Seekins asked for any further testimony. He said they are
not going to move this bill at this time. Having no other
witnesses, Chair Seekins announced they will carry the bill over
and adjourned the judiciary committee.
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