Legislature(2003 - 2004)
05/03/2004 08:17 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
May 3, 2004
8:17 a.m.
TAPE(S) 04-59,60
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Hollis French
MEMBERS ABSENT
Senator Johnny Ellis
COMMITTEE CALENDAR
CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 273(JUD) am
"An Act relating to the right of a parent to waive an
unemancipated child's claim of negligence against a provider of
sports or recreational activities."
HEARD AND HELD
CS FOR HOUSE BILL NO. 275(FIN)
"An Act relating to animals, and to the care of and to cruelty
to animals."
HEARD AND HELD
CS FOR HOUSE BILL NO. 427(JUD)
"An Act relating to guardianships and conservatorships, to the
public guardian and the office of public advocacy, to private
professional guardians and private professional conservators, to
court visitors, court-appointed attorneys, guardians ad litem,
and fiduciaries, and to the protection of the person or property
of certain individuals, including minors; amending Rule 17(c),
Alaska Rules of Civil Procedure, and Rules 16(f) and 17(e),
Alaska Rules of Probate Procedure; and providing for an
effective date."
HEARD AND HELD
CS FOR HOUSE BILL NO. 549(JUD) am
"An Act relating to unsolicited communications following an
aircraft accident."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 273
SHORT TITLE: PARENTS' WAIVER OF CHILD'S SPORTS CLAIM
SPONSOR(s): REPRESENTATIVE(s) MCGUIRE
04/16/03 (H) READ THE FIRST TIME - REFERRALS
04/16/03 (H) TRA, JUD
05/07/03 (H) TRA REFERRAL WAIVED
02/16/04 (H) SPONSOR SUBSTITUTE INTRODUCED
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD
03/22/04 (H) JUD AT 1:00 PM CAPITOL 120
03/22/04 (H) Moved CSSSHB 273(JUD) Out of Committee
03/22/04 (H) MINUTE(JUD)
03/29/04 (H) JUD RPT CS(JUD) NT 4DP 1NR
03/29/04 (H) DP: SAMUELS, HOLM, OGG, MCGUIRE;
03/29/04 (H) NR: GRUENBERG
04/15/04 (H) TRANSMITTED TO (S)
04/15/04 (H) VERSION: CSSSHB 273(JUD) AM
04/16/04 (S) READ THE FIRST TIME - REFERRALS
04/16/04 (S) STA, JUD
04/29/04 (S) STA AT 3:30 PM BELTZ 211
04/29/04 (S) Moved CSSSHB 273(JUD)am Out of
Committee
04/29/04 (S) MINUTE(STA)
05/01/04 (S) STA RPT 3NR
05/01/04 (S) NR: STEVENS G, STEDMAN, GUESS
05/03/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 275
SHORT TITLE: ANIMALS AND CRUELTY TO ANIMALS
SPONSOR(s): REPRESENTATIVE(s) CHENAULT
04/17/03 (H) READ THE FIRST TIME - REFERRALS
04/17/03 (H) L&C, RES
02/20/04 (H) L&C AT 3:15 PM CAPITOL 17
02/20/04 (H) <Bill Hearing Postponed>
03/29/04 (H) L&C AT 3:15 PM CAPITOL 17
03/29/04 (H) Moved CSHB 275(L&C) Out of Committee
03/29/04 (H) MINUTE(L&C)
03/31/04 (H) RES REFERRAL WAIVED
04/01/04 (H) L&C RPT CS(L&C) NT 3DP 2NR 1AM
04/01/04 (H) DP: CRAWFORD, LYNN, ANDERSON;
04/01/04 (H) NR: ROKEBERG, DAHLSTROM; AM: GUTTENBERG
04/01/04 (H) JUD REFERRAL ADDED AFTER L&C
04/01/04 (H) FIN REFERRAL ADDED AFTER JUD
04/05/04 (H) JUD AT 1:00 PM CAPITOL 120
04/05/04 (H) -- Meeting Postponed to Tues. 4/6/04 --
04/06/04 (H) JUD AT 1:00 PM CAPITOL 120
04/06/04 (H) Heard & Held
04/06/04 (H) MINUTE(JUD)
04/07/04 (H) JUD AT 1:00 PM CAPITOL 120
04/07/04 (H) Heard & Held
04/07/04 (H) MINUTE(JUD)
04/14/04 (H) JUD AT 1:00 PM CAPITOL 120
04/14/04 (H) Moved CSHB 275(JUD) Out of Committee
04/14/04 (H) MINUTE(JUD)
04/19/04 (H) JUD RPT CS(JUD) NT 2DP 2NR
04/19/04 (H) DP: GRUENBERG, MCGUIRE; NR: SAMUELS,
04/19/04 (H) HOLM
04/26/04 (H) FIN AT 8:30 AM HOUSE FINANCE 519
04/26/04 (H) Heard & Held
04/26/04 (H) MINUTE(FIN)
04/27/04 (H) FIN AT 1:30 PM HOUSE FINANCE 519
04/27/04 (H) Moved CSHB 275(FIN) Out of Committee
04/27/04 (H) MINUTE(FIN)
04/28/04 (H) FIN RPT CS(FIN) NT 5DP 6NR
04/28/04 (H) DP: CROFT, MEYER, CHENAULT, FOSTER,
04/28/04 (H) WILLIAMS; NR: HAWKER, STOLTZE, JOULE,
04/28/04 (H) MOSES, FATE, HARRIS
04/30/04 (H) TRANSMITTED TO (S)
04/30/04 (H) VERSION: CSHB 275(FIN)
05/01/04 (S) READ THE FIRST TIME - REFERRALS
05/01/04 (S) JUD, FIN
05/03/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 427
SHORT TITLE: GUARDIANS, CONSERVATORS,OPA, ETC
SPONSOR(s): REPRESENTATIVE(s) ANDERSON
02/04/04 (H) READ THE FIRST TIME - REFERRALS
02/04/04 (H) HES, JUD
04/01/04 (H) HES AT 3:00 PM CAPITOL 106
04/01/04 (H) Heard & Held
04/01/04 (H) MINUTE(HES)
04/06/04 (H) HES AT 3:00 PM CAPITOL 106
04/06/04 (H) Moved CSHB 427(HES) Out of Committee
04/06/04 (H) MINUTE(HES)
04/08/04 (H) HES RPT CS(HES) 1DP 5AM
04/08/04 (H) DP: CISSNA; AM: SEATON, COGHILL, WOLF,
04/08/04 (H) GATTO, WILSON
04/13/04 (H) FIN REFERRAL ADDED AFTER JUD
04/14/04 (H) JUD AT 1:00 PM CAPITOL 120
04/14/04 (H) Moved CSHB 427(JUD) Out of Committee
04/14/04 (H) MINUTE(JUD)
04/21/04 (H) JUD AT 1:00 PM CAPITOL 120
04/21/04 (H) Moved New CSHB 427(JUD) Out of
Committee
04/21/04 (H) MINUTE(JUD)
04/22/04 (H) JUD RPT CS(JUD) NT 7DP
04/22/04 (H) DP: GARA, SAMUELS, GRUENBERG, OGG,
04/22/04 (H) HOLM, ANDERSON, MCGUIRE
04/23/04 (H) FIN REFERRAL WAIVED
04/30/04 (H) TRANSMITTED TO (S)
04/30/04 (H) VERSION: CSHB 427(JUD)
05/01/04 (S) READ THE FIRST TIME - REFERRALS
05/01/04 (S) JUD, FIN
05/03/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 549
SHORT TITLE: UNSOLICITED COMMUNICATION: AIRCRAFT CRASH
SPONSOR(s): JUDICIARY
03/29/04 (H) READ THE FIRST TIME - REFERRALS
03/29/04 (H) JUD
04/05/04 (H) JUD AT 1:00 PM CAPITOL 120
04/05/04 (H) -- Meeting Postponed to Tues. 4/6/04 --
04/06/04 (H) JUD AT 1:00 PM CAPITOL 120
04/06/04 (H) Moved CSHB 549(JUD) Out of Committee
04/06/04 (H) MINUTE(JUD)
04/07/04 (H) JUD RPT CS(JUD) NT 4DP 1NR 1AM
04/07/04 (H) DP: SAMUELS, HOLM, ANDERSON, MCGUIRE;
04/07/04 (H) NR: GARA; AM: OGG
04/21/04 (H) TRANSMITTED TO (S)
04/21/04 (H) VERSION: CSHB 549(JUD) AM
04/22/04 (S) READ THE FIRST TIME - REFERRALS
04/22/04 (S) L&C, JUD
04/27/04 (S) L&C AT 1:30 PM BELTZ 211
04/27/04 (S) Moved SCS CSHB 549(L&C) Out of
Committee
04/27/04 (S) MINUTE(L&C)
05/01/04 (S) L&C RPT SCS 1DNP 3NR SAME TITLE
05/01/04 (S) NR: BUNDE, SEEKINS, STEVENS G;
05/01/04 (S) DNP: FRENCH
05/03/04 (S) JUD AT 8:00 AM BUTROVICH 205
WITNESS REGISTER
Ms. Vanessa Tondini
Staff to Representative McGuire
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified for the sponsor of HB 273 and HB
549
Representative Mike Chenault
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 275
Sue Wright
Staff to Representative Chenault
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Answered questions about CSHB 275(FIN)
Ms. Ethel Christensen
Director, Alaska PCA
No address provided
POSITION STATEMENT: Supports CSHB 275(FIN)
Ms. Sally Clampitt
President
Alaska Equine Rescue
POSITION STATEMENT: Supports CSHB 275(FIN)
Representative Tom Anderson
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 427
Mr. Jim Shine
Staff to Representative Anderson
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Answered questions about CSHB 427(JUD)
Mr. Jim Parker
Assistant Public Advocate
Office of Public Advocacy
Department of Administration
900 W 5th Ave.
Anchorage, AK 99501-2090
POSITION STATEMENT: Supports and answered questions about CSHB
427(JUD)
Mr. Josh Fink
Office of Public Advocacy
Department of Administration
900 W 5th Ave.
Anchorage, AK 99501-2090
POSITION STATEMENT: Supports and answered questions about CSHB
427(JUD)
Ms. Marcia Davis
ERA Aviation
No address provided
POSITION STATEMENT: Supports CSHB 549(JUD)am
Mr. Art Warbelow
Warbelow Air Adventures
No address provided
POSITION STATEMENT: Supports CSHB 549(JUD)am
Mr. Bruce McGasson
Grant Aviation
No address provided
POSITION STATEMENT: Supports CSHB 549(JUD)am
Mr. Ed Greager
ALG Insurance
No address provided
POSITION STATEMENT: Supports CSHB 549(JUD)am
ACTION NARRATIVE
TAPE 04-59, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:17 a.m. Senators French,
Therriault and Chair Seekins were present. The first order of
business to come before the committee was HB 273.
CSSSHB 273(JUD)am-PARENTS' WAIVER OF CHILD'S SPORTS CLAIM
MS. VANESSA TONDINI, staff to Representative Lesil McGuire,
sponsor, explained that this legislation legally recognizes the
right of a parent to waive a child's claim of negligence against
a provider of a sports or recreation activity. She explained,
"The reason for this bill - [it] came about as the result of a
recent Colorado Supreme Court case that they actually refused to
uphold the right of a mother of a 17-year old skier's signature
on a release document used in a juvenile racing camp program."
Ever since that decision, the outdoor industry has been
concerned about the ramifications that could result if such a
holding were to occur in Alaska. Representative McGuire believes
this erroneous rationale runs contrary to some mid-western and
eastern states, which do find and hold that parents specifically
have binding rights to sign release documents on behalf of their
minor children. To find differently would be detrimental to
scouting, athletic and extra-curricular school programs. A well-
settled legal history of recognized parental rights over minor
children exists in the medical treatment and education arena. To
not extend the same logic to recreational activities is unfair.
She also noted that the practical consequences of saying a
parent's signature is invalid on such waivers makes the waiver
itself invalid. That could affect insurance coverage, as
insurance providers might hesitate to cover recreational
activity providers.
MS. TONDINI concluded:
So we don't want these programs to go out of business
or to be operating illegally. As an outdoor recreation
supported state, Alaska just didn't want to stand by
and watch these types of results. So it's important to
know that this bill would not defeat, in any way, a
parent or guardian's right to sue an operator that is
not providing a safe service or program. An ordinary
release waiver only provides a relief through causes
of action founded in negligence. Claims of reckless or
intentional misconduct are never released in a release
waiver and this bill also reflects that. It's crucial
to remember, with respect to pre-recreation releases,
these documents - they regard activities that are
totally voluntary in nature and the personal choice of
the participant. If parents decide that a certain
activity isn't right for their child - too dangerous
or something, and they don't want them to participate
in it, they definitely have that right to do so. This
bill just reflects the freedom of choice and freedom
of contract regarding these activities. So the
fundamental right to make choices regarding a child's
activities is being protected here.
SENATOR FRENCH asked the current law in Alaska and whether the
Alaska Court System has made any recent pronouncements on this
subject.
MS. TONDINI said the court has not made any pronouncements. This
bill is "sort of a look into the future." She pointed out that
the Alaska Court System scrutinizes these types of release
documents and is very particular about making sure those
documents are clear.
SENATOR FRENCH asked Ms. Tondini to cite some Alaska cases that
discuss this concept.
MS. TONDINI offered to get back to Senator French at a later
date. She noted she has a lot of case law from other states.
SENATOR THERRIAULT asked if the release is only for the sports
activity itself and not for ancillary services, such as
transportation.
MS. TONDINI believed that would be left to the company that
designed the waiver. This legislation would cover a potential
claim of negligence against the provider of those activities.
She was unsure at what point the provision of the service would
begin and end but surmised that would depend on the way the
services were structured. She guessed the release of any
potential claim of negligence would begin whenever the activity
provided began, and that would have to be specified in the
release waiver.
SENATOR THERRIAULT asked if the waiver would apply if, for
example, a group of children was not properly supervised before
a game started.
CHAIR SEEKINS said he reads it to say the waiver is against any
prospective claim of negligence against the provider so anything
in the package offered by the provider would be covered under
that waiver.
SENATOR FRENCH thought the larger consideration is that in
Alaska, recreational teams travel to sporting events. He said a
claim could arise over something that happened in a hotel room
in which the coach was somehow involved. He questioned whether
the coach would be immune from all claims of negligence while in
contact with the minors or only from claims that arise from
conduct during the sporting event itself.
SENATOR THERRIAULT said most parents know that sporting
activities are inherently dangerous but he doesn't know that
parents should have to worry about an inherent risk in
transporting students or their overnight stays. He questioned
whether those things could be separated out.
MS. TONDINI said the bill only covers providers of sports or
recreational activities as defined in AS 09.65.290. She read:
Provider means a person or a federal, state or
municipal agency that promotes, offers or conducts a
sports or recreational activity, whether for pay or
otherwise.
She furthered that sports or recreational activities are defined
at length. She said her reading is that it would only apply to a
provider of those specific activities so she felt there would be
a good argument that a hotel owner would not be covered unless
the release waiver included the entire trip.
SENATOR THERRIAULT asked who the provider would be, i.e. the
Fairbanks-North Star Little League association.
MS. TONDINI said yes or the federal, state or local agency or a
private agency or individual.
CHAIR SEEKINS thought, if the minors were entrusted to the
coach's care, a coach might be liable for negligence but the
association would not be.
SENATOR THERRIAULT said the Little League association usually
covers everything and questioned whether this legislation would
cover everything or just the sporting event.
CHAIR SEEKINS thought it would cover everything.
SENATOR FRENCH expressed interest in narrowing the bill's focus
to just the sporting event itself.
CHAIR SEEKINS said the first stage of an insurance policy covers
all claims that result from an accident of any kind, such as
medical costs. Negligence would be the next portion of the
claim. He pointed out that any damages from intentional
misconduct or reckless behavior are no longer covered under his
business's policy. He said he believes what is happening is that
many sports organizations are having a difficult time getting
coverage because a higher number of people not only want to make
sure their children are covered for medical costs but to also
get additional damages for negligence. That is why these waivers
are more predominant.
SENATOR FRENCH said the rub is that insurance companies do not
want to cover negligence. He surmised that the legislation needs
to be as narrowly focused as possible because insurance
companies will write a policy based on it the day it passes and
will no longer cover negligence and transport.
CHAIR SEEKINS felt that sports providers feel they have too much
liability and can't get coverage for it. He said the choice is
that parents either waive the claim for negligence or the
activity must cease. He said the question is whether parents
should have the right to waive liability coverage for their
children.
SENATOR THERRIAULT maintained that the fact that the bill is
moving through the system is due to the fact that everyone knows
that sporting activities can be inherently dangerous. However,
there is the issue about the associated activities, such as
transportation and lodging. He believed that most parents would
sign a waiver knowing their children might get bruised but most
would not know that waiver includes all of the other activities.
He said if the transportation and lodging is a potential
problem, he wants to hear that, otherwise it is getting pulled
along with the waiver of liability for the activity that makes
sense, yet there is a logical difference between the two.
CHAIR SEEKINS said the basic overriding question is whether or
not a parent can sign an effective waiver.
MS. TONDINI said that is correct and the sponsor believes it is
very important to recognize parental rights in this area. To not
do so would be inconsistent with other recognized areas of
parental rights. She then told Senator French that the Alaska
Supreme Court has heard two cases on the effectiveness of pre-
recreational releases, both of which were denied. She cited
those cases and said in both of those cases, the court found
neither release contained the words "negligence" or "death,"
which the court is careful to scrutinize for.
CHAIR SEEKINS noted that no one wished to testify on the bill
and asked the will of the committee.
SENATOR THERRIAULT repeated his desire to specify that the
waiver is for a sports activity only.
Members discussed possible language changes to address their
concern.
SENATOR THERRIAULT offered to work with the legal drafter to
confine the liability waiver to the activity itself and not
include the ancillary services.
CHAIR SEEKINS agreed to bring the bill up at the next meeting
and announced an at-ease.
8:40 a.m.
CSHB 275(FIN)-ANIMALS AND CRUELTY TO ANIMALS
REPRESENTATIVE MIKE CHENAULT, sponsor, deferred to his staff to
present the bill.
CHAIR SEEKINS noted that he is the Vice Chairman of the State
Policy Committee of the American Quarter Horse Association. One
of his duties is the continuous evaluation of animal cruelty
laws across the country, particularly as they apply to equines.
MS. SHARALYN WRIGHT, staff to Representative Chenault, told
members this legislation is the result of hard work done on the
House side with many participants. The issue of animal cruelty
arose four years ago after several incidents of animal cruelty
came to light. This bill aligns Alaska law with laws in some
other states. Current Alaska statute has very few applications
to animal cruelty so prosecuting cases of animal cruelty is
difficult. It is not the sponsor's intent that this legislation
affect livestock or dog mushing. It is the sponsor's intent to
stop animal cruelty at its worst.
CHAIR SEEKINS took public testimony.
MS. CHRIS HEINZE, a Kenai Peninsula farmer, stated support for
CSHB 275(FIN). She informed members that she has been taking
care of unwanted and abused animals for many years and that many
people on the Kenai Peninsula are tired of seeing the abuse and
cruelty of animals there.
MS. ETHEL CHRISTIANSEN, director and founder of the Alaska SPCA,
stated support for CSHB 275(FIN) and said it will be very
important for her community.
MS. SALLY CLAMPITT, President of Alaska Equine Rescue, stated
strong support for CSHB 275(FIN) because it is sensible and
provides parameters and details. The current statute is very
hard to enforce; CSHB 275(FIN) will make prosecution easier for
the district attorney.
CHAIR SEEKINS said he wants to see a penalty for abuse put into
law but wants to maintain the ability to euthanize an animal.
This legislation allows a licensed veterinarian to make certain
determinations.
SENATOR THERRIAULT referred to the language on page 4, line 29,
and expressed concern that some ethnic groups eat certain
domesticated animals.
MS. WRIGHT said that the House Labor and Commerce Committee
inserted that language.
SENATOR THERRIAULT felt the bill should acknowledge other
culture's food sources. He then referred to the language on page
4, line 28, and asked for an explanation.
MS. WRIGHT said that the prohibition against decompression
chambers is current law because that is an inhumane form of
euthanasia.
SENATOR FRENCH referred to lines 20-21 on page 6 and asked what
is meant by securing an animal in the back of a vehicle.
MS. WRIGHT said last year she was driving on Kalifonsky Beach
road when a dog fell out of the back of a truck and landed in
front of her vehicle. She had the choice of having a head-on
collision with another car, hitting the dog, or swerving into a
gas station. She said securing a dog is a matter of tying the
dog with a short rope or leash inside the back of the truck.
SENATOR FRENCH questioned whether that requirement should be
restricted to highways or streets and not, for example, a
vehicle driving along a beach.
CHAIR SEEKINS agreed with Senator French.
REPRESENTATIVE CHENAULT pointed out that some municipalities
have ordinances requiring animals to be secured inside of
vehicles.
CHAIR SEEKINS questioned the language on lines 18-19 of page 6
and said it would raise the hackles of members of the Alaska
Trappers Association.
MS. WRIGHT said this bill allows for commercial or subsistence
trapping.
SENATOR FRENCH cited lines 25-26 of the same page.
CHAIR SEEKINS said a person could be charged with unlawful
trapping under that language so the person would be burdened
with the defense for lawful trapping.
SENATOR FRENCH agreed.
CHAIR SEEKINS suggested rewording that section so that a
legitimate trapper would not have to defend himself in court.
SENATOR THERRIAULT questioned why that section was not written
to address people with the sole purpose of snaring a domestic
animal since trapping a wild animal is allowed.
SENATOR FRENCH suggested the phrase, "intentionally sets a steel
jaw, leg hold snare, spring or similar trap for the purpose of
injuring or killing a dog or cat or domestic animal."
TAPE 04-59, SIDE B
CHAIR SEEKINS said that section could be worked on.
SENATOR FRENCH commented that he agrees with the purpose of the
bill and is interested in moving it out of committee, however,
his only concern is that the requirement to secure animals in
the back of pick-up trucks be restricted to highways.
CHAIR SEEKINS agreed. He then referred to the section pertaining
to care of animals on page 1 and said that could be a
potentially inflammatory section depending on who interprets it.
He said he realizes the determination is to be made by a
veterinarian but said people's standards differ and although
some standards might be acceptable from a health perspective,
others might find those standards objectionable. His concern is
that if a police officer investigates a case of animal abuse,
the police officer be required to at least make contact with a
veterinarian before any animals are confiscated so that a well-
intentioned but overzealous person does not make the wrong
decision.
REPRESENTATIVE CHENAULT pointed out that to get a search
warrant, one must show probable cause. The bill also contains
the phrase, "if warranted" so that just because a complaint was
filed and a judge issued a search warrant, an officer would not
automatically have to take the animals into custody. He said
although egregious cases of abuse are obvious, police officers
are not trained in animal cruelty.
CHAIR SEEKINS said he wonders if prior to seizure of an animal,
some consultation with a veterinarian be required. He felt that
would make for a better prosecutorial case.
SENATOR FRENCH thought only the most egregious cases would get
attention because state troopers must prioritize their work and
an animal abuse case may fall low on the list.
REPRESENTATIVE CHENAULT said that is true but if they are
required to take a look, he wants them to make the best decision
possible. He said he personally has no problem if a police
officer makes contact, at a minimum, with a veterinarian.
CHAIR SEEKINS said that is why he is suggesting that the police
officer consult with a veterinarian as soon as possible. He then
announced that he would hold the bill for further review of the
aforementioned issues.
SENATOR THERRIAULT specified those issues are: the consumption
of domesticated animals by certain cultures; legal trapping; and
securing a pet in a vehicle.
The committee took an at-ease from 9:20 a.m. to 9:27 a.m.
HB 427-GUARDIANS, CONSERVATORS, OPA, ETC.
REPRESENTATIVE TOM ANDERSON, sponsor of HB 427, told members
that HB 427 is the result of conversations he has had with Josh
Fink of the Office of Public Advocacy regarding the mistreatment
of vulnerable adults who receive services from private guardians
and conservators. Mr. Fink felt it important that Alaska be in
parody with other states that have regulatory and supervisory
statutes to prevent abuse. He sponsored this bill in concert
with the Office of Public Advocacy and the Alaska State
Association for Guardianship and Advocacy, Adult Protective
Services, the Long Term Care Ombudsman, the Disability Law
Center, the Senior Advocacy Coalition, AARP and the Alaska Court
System. He explained that professional guardians and family
guardians provide services to approximately 2,500 disabled,
vulnerable adults in Alaska. Under current law, private
guardians and conservators make legal, medical and housing
decisions for those adults and are completely unregulated by the
state. Disabled adults are obviously easy prey for those wishing
to exploit their resources, so HB 427 would grant regulatory
authority over private guardians and conservators and establish
minimum qualifications and standards, which will help ensure
that disabled adults get the help and care they deserve. HB 427
will require private guardians and conservators to meet certain
criteria and to register with the state. Private guardians will
have to be certified by the National Guardianship Foundation and
have at least two years of professional experience working with
clients or a degree in human services, social work, psychology,
sociology, special education or a closely related field. HB 427
will also require guardians to have experience in financial
management or a degree in accounting. This legislation prohibits
private guardians from registering with the state and practicing
in the state without a criminal background check. HB 427 allows
the Division of Occupational Licensing to revoke a private
guardian's license if the guardian has abandoned, neglected or
exploited his or her ward or has become unfit due to
professional incompetence.
MR. JIM SHINE, staff to Representative Anderson, told members
that since the legislature is under the 24-hour rule, it has
been difficult to get in touch with the people who were
instrumental in getting this legislation drafted but Mr. Parker
was available to testify via teleconference.
MR. JIM PARKER, Assistant Public Advocate, Office of Public
Advocacy, said he is a member of the State Association of
Guardianships and a member of the task force that was
instrumental in drafting this legislation.
CHAIR SEEKINS asked for an explanation of the changes made in
Version S [CSHB 427(JUD)].
MR. PARKER stated that the House Judiciary Committee made no
major changes. One change, suggested by the Division of
Occupational Licensing, was to amend Title 8 rather than Title
13 regarding the qualifications of private guardians and
conservators.
CHAIR SEEKINS asked for an estimate of the number of
conservators and guardians in the state.
MR. PARKER said the great majority of persons appointed are
family members. This bill does not cover people who are not in
the business of providing guardianships or conservatorships.
CHAIR SEEKINS asked if a family member would not be regulated.
MR. PARKER said that is correct, although that person would be
obligated to file reports with the court and receive some
training. The State Association of Guardianships has created
videotape for training purposes. Also, friends who act as
guardians would not be regulated.
SENATOR FRENCH asked if, outside the Office of Public Advocacy,
there is a discrete group of people who act as professional
guardians, and if Mr. Parker could estimate that number.
MR. PARKER said about 10 or 12 people in Southcentral Alaska,
fewer than optimal.
SENATOR FRENCH asked if any of those people will be unable to
continue to provide services if the requirements of the bill
apply.
MR. PARKER said he did not believe the legislation would
disqualify anyone.
SENATOR FRENCH referred to line 17 on page 2 and said a person
cannot be licensed if convicted of a crime within 10 years of
application. He asked if that would be 10 years from the date of
judgment or 10 years from the date the probationary period
expired.
MR. PARKER said it would be 10 years from the date of
conviction. He added that issue was discussed in the House. A
guardian must be in good standing with a national organization;
the only one that pertains to guardianships at this time is the
National Guardianship Association (NGA). The NGA requires its
test applicants to have a clean criminal record.
SENATOR FRENCH said he mentioned it because a person could be
convicted of a serious offense, get a 10-year sentence, but
become a guardian right after serving that sentence.
MR. PARKER said the House Judiciary Committee discussed that
possibility. He assured Senator French that the NGA's standards
are higher than those in the bill so that is not something to
worry about.
CHAIR SEEKINS noted that without further questions or
participants, public testimony was closed.
SENATOR THERRIAULT questioned how the Alaska Court System (ACS)
can take on the additional responsibilities set out on page 13
if the fiscal notes are zero. He said it is his understanding
that the ACS does not produce the report required under existing
statute so this will add to that requirement.
MR. SHINE told members that Doug Wooliver played a major role in
the process of drafting this bill but was unable to attend due
to a prior commitment. According to Mr. Wooliver, CSHB 427(JUD)
will have no fiscal impact on the ACS.
MR. JOSH FINK, Director of the Office of Public Advocacy, said
he does not believe that requirement will trigger a fiscal note.
Guardians are required to file annual reports and a visitor to
the ACS must file a report every third year. The language [in
existing statute] is ambiguous as to whether or not the visitor
is to file a report annually, but the visitor cannot do that
without access to the information every year. The point of a
third year review by the visitor was to give the ACS input about
how the guardianships were going, any problems, and whether any
clients had improved and no longer needed guardianship services.
SENATOR THERRIAULT said the language on page 13, lines 25-27, is
an attempt to clarify the language that is being deleted on
lines 27-28. However, language [in the previous paragraph]
requires the guardian to submit a report to the ACS but the ACS
is not tracking those reports and nothing is submitted. He said
he does not know whether that is due to lack of resources, but
he would like an answer as to why the ACS is willing to take on
additional responsibility when it is not following the existing
statute. He then referred to written correspondence in members'
packets and asked who Mr. Robert Penzenik represents.
MR. SHINE said he is a family guardian who lives in Anchorage.
He testified in support of the bill before the House HESS
Committee.
SENATOR THERRIAULT asked what Mr. Penzenik's relationship is to
the guardianship issue.
MR. SHINE said Mr. Pensenik is a family guardian for his
daughter. He stated in the House HESS Committee that this bill
will not impact family guardians.
SENATOR THERRIAULT asked if he acts as a guardian in any other
arena.
MR. SHINE said he works in conjunction with another conservator
for other minors.
REPRESENTATIVE ANDERSON expressed concern that Mr. Wooliver
could not answer members' questions.
CHAIR SEEKINS stated that Senate President Therriault could
determine whether this legislation should be waived from the
Senate Finance Committee. He noted the chair of the Senate
Finance Committee will have to be convinced that this bill will
have no fiscal impact before agreeing to waive the bill.
SENATOR FRENCH asked if guardians will pay a fee for licensure.
MR. SHINE thought the fee would be $100 biennially.
REPRESENTATIVE ANDERSON noted the fee would cover the cost of
licensure by the Division of Occupational Licensing.
SENATOR FRENCH said the fiscal note is unclear as to whether
licensees will pay $100 or $450.
CHAIR SEEKINS indicated the Senate Finance Committee will want
an answer to that question before agreeing to waive the bill.
REPRESENTATIVE ANDERSON agreed to get answers to those questions
and distribute them to Senate Judiciary and Senate Finance
members. If the Senate Finance Committee members are not
satisfied with those answers, he will not request that the bill
be waived from that committee.
SENATOR THERRIAULT asked that the bill be held in committee to
give him time to talk to Mr. Wooliver.
CHAIR SEEKINS agreed and said he would schedule several bills
that are being held over to the next day.
CSHB 549(JUD)am-UNSOLICITED COMMUNICATION:AIRCRAFT CRASH
MS. VANESSA TONDINI, staff to Representative McGuire, sponsor of
HB 549, told members this bill prohibits an attorney from
contacting passengers or their families in the aftermath of an
aviation accident for 45 days. She noted that attorneys are
bound by rules of professional conduct; Rule 7.3 is applicable
to this type of conduct. That rule states:
Attorneys shall not solicit by in person or live
telephone contact special employment from a
prospective client, with whom the lawyer has no family
or prior professional relationship when a significant
motive for the lawyer's doing so is the lawyer's
pecuniary gain.
She explained the reason behind Rule 7.3 is that prospective
clients who are feeling overwhelmed may find it difficult to
evaluate all alternatives with reasoned judgment after an
accident. Those situations are fraught with the possibility of
undue influence or intimidation. However, even though Rule 7.3
has been in place for some time, it has not controlled the
"feeding frenzy" that takes place in the aftermath of awful
accidents. The federal government tried to correct the problem
by passing the Aviation Disaster and Family Assistance Act in
1996. That law mandated that air carriers provide specific
support to families of those injured or killed and prohibited
unsolicited contact by attorneys for 30 days. In 2000 that law
was amended to expand the scope to include associate agents,
employees, or other representatives of attorneys and it expanded
the time frame to 45 days. She pointed out that enforcement of
the federal law requires action by the Civil Aeronautics Board
or the U.S. Attorney General. The penalty for a violation is
close to a $1,000 fine. Currently, little enforcement of this
law takes place and there is debate about whether the federal
law is enforceable against attorneys who violate it regarding
accidents that happen entirely within Alaska. She thought
everyone would agree that passengers and their families are very
vulnerable to pressure by others in the aftermath of an
accident, especially in rural Alaska. She pointed out that this
bill will apply only to flights that take place entirely inside
of Alaska.
MS. TONDINI indicated that CSHB 549(JUD)am merely codifies the
federal law except that a reference to the air carrier's
attorney has been added to make it clear that all attorneys are
to refrain from making contact. The main reason that
Representative McGuire included a criminal sanction in the bill
is because she felt a civil financial penalty would be
inadequate because the contingency fees for representing these
clients are high. In addition, people are hesitant to file bar
complaints against their neighbors in small towns, just as they
would be hesitant to file a civil claim. Also, the Alaska Bar
Association will take notice of a criminal case. The crime is a
class A misdemeanor with a fine of $100,000 or the attorney's
legal fee, whichever is greater.
TAPE 04-60, SIDE A
MS. TONDINI further explained that CSHB 549(JUD)am only prevents
attorneys from making initial contact; a client can initiate
contact at any time.
10:00 a.m.
CHAIR SEEKINS asked if the definition of an "attorney" include
an agent or representative of an attorney.
MS. TONDINI said it does on page 1, line 10, and in subsection
(b).
CHAIR SEEKINS said he wanted it on the record that the
definition of attorney extends to anyone who is soliciting on
the attorney's behalf as well. He then took public testimony.
MS. MARCIA DAVIS, ERA Aviation, stated support for CSHB
549(JUD)am.
SENATOR FRENCH asked Ms. Davis if she has ever settled a claim
that happened on an ERA flight and, if so, when.
MS. DAVIS said ERA has settled. When ERA is contacted by someone
who claims to have suffered an injury during a flight, ERA asks
the person to submit medical bills, which it pays immediately.
If the person asks for extraneous damages, such as lost work
time, ERA pays those as well if they seem reasonable. However,
if ERA believes the person is trying to take advantage of the
situation, ERA tries to settle those cases fairly, which
sometimes involves offering additional air transportation. She
said she cannot think of any cases in which the passenger was
dissatisfied with how the claim was resolved when ERA was able
to deal with the claim directly. However, in instances, for
example, where a person had a bumpy flight out of Bethel and had
an attorney write a letter, those situations have not gone well,
primarily because the individual did not intend to sue but was
encountered by a lawyer. Individuals have admitted that.
MR. ART WARBELOW, Warbelow Air Adventures, stated support of
CSHB 549(JUD)am.
MR. BRUCE McGASSON, Grant Aviation, stated support for CSHB
549(JUD)am.
MR. ED GRAEGER, ALG Insurance, stated support of CSHB
549(JUD)am.
SENATOR OGAN asked if people who got a bruise on a bumpy flight
actually file claims.
MR. GRAEGER replied:
Unfortunately, what we do see is attorney solicitation
of claims for very minor injuries and that's what's
part of eating into capacity and cost for providing
liability coverage for the various air carriers in
Alaska is that minor matters are getting pursued
aggressively by counsel and it affects, over a long
period of time, the costs of providing perhaps, larger
limits for people who are more deserving with more
serious injuries. So, our interest in this is to avoid
unnecessary solicitation of minor matters so that
greater capacity can be available to respond to more
serious injuries.
He told members ALG Insurance covers the full gamut of aviation
carriers.
SENATOR FRENCH asked Ms. Tondini if the attorney general would
be nervous about filing a civil complaint against a lawyer.
MS. TONDINI said she does not know that "nervous" is the right
word but she does not believe civil suits would be filed as
aggressively as criminal suits would be. She said everyone
agrees such conduct on an attorney's part is wrong so the
penalty in the bill is strong enough to be worth enforcement.
SENATOR FRENCH noted that he asked, at a prior hearing, to hear
from people who have been harassed by attorneys.
MS. TONDINI deferred to the aviation representatives to discuss
some of those situations, however they would not release names
to her because of privacy concerns.
MS. DAVIS related a current case in which a nose wheel snapped
off on a landing outside of Bethel. Although no one was injured
at the scene, all passengers were brought to Bethel for medical
care as a safety precaution. ERA offered the passengers free
tickets. A passenger told an ERA employee that a lawyer
contacted him and a friend afterward. The passenger told the
lawyer he had no intention of suing but the friend succumbed to
pressure from the lawyer and is now pursuing a claim for damages
for emotional trauma. She said it is difficult to get people to
talk about their neighbors who are sometimes the lawyers. She
noted that ERA does not file bar complaints because that is one
of the last things it would want to do while in the midst of
litigation and trying to settle. In addition, it is problematic
from a public relations aspect.
CHAIR SEEKINS noted that he would hold CSHB 549(JUD)am until the
next day and adjourned the meeting at 10:13 a.m.
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