04/05/2010 11:00 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB292 | |
| SB249 | |
| SB303 | |
| SB222 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 222 | TELECONFERENCED | |
| + | SB 303 | TELECONFERENCED | |
| + | HB 386 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 249 | ||
| = | SB 292 | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 5, 2010
11:05 a.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Dennis Egan
Senator John Coghill
MEMBERS ABSENT
Senator Lesil McGuire
COMMITTEE CALENDAR
SENATE BILL NO. 222
"An Act relating to the crimes of harassment, possession of
child pornography, and distribution of indecent material to a
minor; relating to suspending imposition of sentence and
conditions of probation or parole for certain sex offenses;
relating to aggravating factors in sentencing; relating to
registration as a sex offender or child kidnapper; amending Rule
16, Alaska Rules of Criminal Procedure; and providing for an
effective date."
- HEARD AND HELD
SENATE BILL NO. 303
"An Act relating to a subcontractor's, contractor's, and project
owner's liability for workers' compensation, to sole proprietors
and partnerships without employees, and to managers or managing
members of limited liability companies, and excluding certain
persons from liability for securing the payment of workers'
compensation benefits to employees; and providing for an
effective date."
- HEARD AND HELD
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 386(FIN)
"An Act establishing a uniform format and procedure for
citations for certain violations of state law; relating to the
form, issuance, and disposition of citations for certain
violations; relating to certain crimes and penalties for
noncompliance with citations; and providing for an effective
date."
- SCHEDULED BUT NOT HEARD
SENATE BILL NO. 292
"An Act relating to the registration and operation of
pawnbrokers and to the exemption for pawnbrokers under the
Alaska Small Loans Act; and providing for an effective date."
- MOVED CSSB 292(JUD) OUT OF COMMITTEE
SENATE BILL NO. 249
"An Act relating to official action by electronic transmission,
to records, and to public records."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 292
SHORT TITLE: PAWNBROKERS
SPONSOR(s): SENATOR(s) HUGGINS
02/24/10 (S) READ THE FIRST TIME - REFERRALS
02/24/10 (S) L&C, JUD
03/18/10 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
03/18/10 (S) Moved CSSB 292(L&C) Out of Committee
03/18/10 (S) MINUTE(L&C)
03/22/10 (S) L&C RPT CS 3DP NEW TITLE
03/22/10 (S) DP: PASKVAN, DAVIS, BUNDE
03/22/10 (S) FIN REFERRAL ADDED AFTER JUD
03/29/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/29/10 (S) Heard & Held
03/29/10 (S) MINUTE(JUD)
04/02/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/02/10 (S) Heard & Held
04/02/10 (S) MINUTE(JUD)
BILL: SB 249
SHORT TITLE: PUBLIC RECORDS/ELECTRONIC TRANSMISSIONS
SPONSOR(s): SENATOR(s) ELLIS
02/01/10 (S) READ THE FIRST TIME - REFERRALS
02/01/10 (S) STA, JUD
03/23/10 (S) STA RPT 5DP
03/23/10 (S) DP: MENARD, FRENCH, MEYER, PASKVAN,
KOOKESH
03/23/10 (S) STA AT 9:00 AM BELTZ 105 (TSBldg)
03/23/10 (S) Moved SB 249 Out of Committee
03/23/10 (S) MINUTE(STA)
03/31/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/31/10 (S) Heard & Held
03/31/10 (S) MINUTE(JUD)
04/02/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/02/10 (S) Heard & Held
04/02/10 (S) MINUTE(JUD)
BILL: SB 303
SHORT TITLE: WORKERS' COMPENSATION AND CONTRACTORS
SPONSOR(s): LABOR & COMMERCE
03/08/10 (S) READ THE FIRST TIME - REFERRALS
03/08/10 (S) L&C, JUD
03/25/10 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
03/25/10 (S) Heard & Held
03/25/10 (S) MINUTE(L&C)
04/01/10 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
04/01/10 (S) Moved SB 303 Out of Committee
04/01/10 (S) MINUTE(L&C)
04/02/10 (S) L&C RPT 3DP 1NR
04/02/10 (S) DP: PASKVAN, DAVIS, THOMAS
04/02/10 (S) NR: MEYER
04/05/10 (S) JUD AT 11:00 AM BUTROVICH 205
BILL: SB 222
SHORT TITLE: SEX OFFENSES; OFFENDER REGIS.; SENTENCING
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/19/10 (S) READ THE FIRST TIME - REFERRALS
01/19/10 (S) JUD, FIN
01/25/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
01/25/10 (S) Heard & Held
01/25/10 (S) MINUTE(JUD)
02/15/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/15/10 (S) Heard & Held
02/15/10 (S) MINUTE(JUD)
04/05/10 (S) JUD AT 11:00 AM BUTROVICH 205
WITNESS REGISTER
JOSH TEMPEL, Staff
to Senator Charlie Huggins
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Explained the new provisions in the
committee substitute for SB 292 on behalf of the sponsor.
MIKE FORD, Attorney
Civil Division
Department of Law (DOL)
Juneau, AK
POSITION STATEMENT: Reported that DOL had concerns with SB 249
but was not yet prepared to offer suggested solutions.
MAX HENSLEY, Staff
to Senator Johnny Ellis, said
POSITION STATEMENT: Testified that the sponsor and his staff
would be happy to work with DOL and the committee to resolve any
concerns with SB 249.
SENATOR JOE PASKVAN
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Sponsor of SB 303.
KIP KNUDSON, External Affairs Manager
Tesoro Alaska
POSITION STATEMENT: asked the committee to set SB 303 aside.
KEVIN CLARKSON, Attorney
Anchorage, AK
POSITION STATEMENT: Testified on behalf of Tesoro Alaska to
oppose SB 303.
KEVIN DOUGHERTY, Attorney
Alaska Laborers
Anchorage, AK
POSITION STATEMENT: Testified in support of SB 303 as a means
to get the workers' compensation law back on track.
JERRY LEE, representing himself
POSITION STATEMENT: Testified in support of SB 303.
BRAD THOMPSON, Director
Risk Management
Department of Administration
POSITION STATEMENT: Testified that the state would lose the
protection of exclusive remedy under SB 303.
JERRY LUCKHAUPT, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
Juneau, AK
POSITION STATEMENT: Provided a sectional analysis of the CS for
SB 222 as the drafter.
CINDY SMITH, Chief of Staff
to Senator Hollis French
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Provided information related to the CS for
SB 222 as the Senate Judiciary Committee aide.
SUSAN MCLEAN, Director
Civil Division
Department of Law (DOL)
Anchorage, AK
POSITION STATEMENT: Described concerns that DOL has with CS for
SB 222.
JEFFREY MITTMAN, Executive Director
ACLU of Alaska
Anchorage, AK
POSITION STATEMENT: Stated that he would like an opportunity to
review the CS for SB 222 after which he would provide comments.
ACTION NARRATIVE
11:05:45 AM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 11:05 a.m. Present at the call to
order were Senators Coghill, Wielechowski, and French.
SB 292-PAWNBROKERS
11:06:09 AM
CHAIR FRENCH announced the consideration of SB 292. He noted
that the sponsor prepared a committee substitute (CS) to address
concerns that were expressed about electronic records.
JOSH TEMPEL, staff to Senator Huggins, sponsor of SB 292,
thanked the committee for its input and making a good bill
better. He highlighted the changes made in the CS. On page 2,
line 14, some language was removed because it addressed second
hand and thrift stores. On page 4, line 8, the description of
pledged property is now limited to serial numbers, model numbers
or other numbers on the item. Page 4, lines 15-27 addresses
electronic records and it is language that this committee passed
several years ago. It says:
(b) A register may be contained in a book or in an
electronic format, except that the register for pawn
transactions must be in an electronic format if the
pawnbroker is located in a municipality that has a
population of more than 5,000.
CHAIR FRENCH commented that 5,000 is a good cutoff point. In a
large city like Anchorage it's difficult to keep on top of what
pawnbrokers have in their stores, whereas in smaller towns a
police officer can readily identify new property in a pawnshop.
MR. TEMPEL said the final change addresses Senator Egan's
concerns. On page 12, line 27, the language describing municipal
regulation was clarified to reflect the sponsor's intent to set
this statute as a minimum and to allow maximum local control.
CHAIR FRENCH asked for a motion to adopt the CS.
SENATOR WIELECHOWSKI moved to adopt the work draft committee
substitute (CS) for SB 292, labeled 26-LS1487\T, as the working
document. There being no objection, version T was before the
committee.
CHAIR FRENCH found no questions or discussion and asked for a
motion to move the bill from committee.
11:09:39 AM
SENATOR WIELECHOWSKI moved to report CS for SB 292, version T,
from committee with individual recommendations and attached
fiscal note(s). There being no objection, CSSB 292(JUD) moved
from the Senate Judiciary Standing Committee.
At ease from 11:09 to 11:10 a.m.
SB 249-PUBLIC RECORDS/ELECTRONIC TRANSMISSIONS
CHAIR FRENCH announced the consideration of SB 249. It was heard
previously. He noted that DOL had articulated concern about some
perceived errors in the bill.
11:11:25 AM
MIKE FORD, Attorney, Civil Division, Department of Law, related
that DOL has been working on language to correct their concerns,
but it's not in final form. He spoke to the sponsor and his
staff and offered to continue to work on their concerns and that
seemed to be acceptable. He said he appreciates that the
committee wanted to advance the bill, but DOL believes that this
is a complex bill with far-reaching implications and they are
not prepared to go on record with a proposed solution at this
time.
CHAIR FRENCH said he agrees that it's a complex bill, but it was
complex when it was first introduced and he's struggling with
the fact that it's taken DOL two months to get its views in
writing. He asked if DOL could get its work done by Wednesday.
MR. FORD replied that depends in part on whether Senator Ellis's
staff is available to meet, but they could certainly try to do
that.
CHAIR FRENCH said he would prefer to have acquiescence from the
sponsor, but an inability to meet with his staff should not hold
up DOL's work. He reminded Mr. Ford that he could bring the
material straight to this committee since this is where the
decision will be made. "As soon as you can get concrete language
addressing the concerns you raised you should send copies to my
office, to my chief of staff, Cindy Smith," he admonished.
MR. FORD said he understood.
CHAIR FRENCH said the Governor and the public support this bill
in concept and we should be able to work through the concerns
before the end of session.
MAX HENSLEY, staff to Senator Ellis, said the sponsor and his
staff are happy to work with the Department of Law and this
committee to do what is necessary within the timeframe.
11:14:17 AM
CHAIR FRENCH stated that this committee will make time to work
this out and get the bill moving by Wednesday. He held SB 249 in
committee.
SB 303-WORKERS' COMPENSATION AND CONTRACTORS
CHAIR FRENCH announced the consideration of SB 303.
11:14:42 AM
SENATOR JOE PASKVAN, sponsor of SB 303, said this bill is
designed to establish responsibility and accountability. It
advances conservative principles and fundamental capitalism by
requiring owners, general contractors and others on a
construction project to comply with the basic principle that is,
"If you break it you pay for it." He added that it's important
to understand that in Alaska under the concept of general law
known as apportionment, an owner or general contractor who is 25
percent at fault is only liable for 25 percent of the injury.
It's not the case that someone who is 1 percent at fault would
be 100 percent responsible.
SENATOR PASKVAN reminded the committee that this nation was
formed on the concept that the government and its citizens
should be responsible and accountable for their wrongful
conduct. This was a basic and fundamental principle to the
founding of this country and likewise, the core concept in
Alaska was that the government may be responsible for wrongdoing
to individual citizens. However, that changed in 2004 with the
creation of a privileged class that was immune from their
wrongful conduct. SB 303 seeks to remove immunity.
11:17:37 AM
SENATOR PASKVAN noted that an argument that has been advanced
says that SB 303 will promote double dipping, but that is
patently not true. AS 23.30.015(g), which deals with the
workers' compensation system when third parties are at fault,
has since statehood said that if the employee recovers damages
from the third party, that employee shall reimburse the employer
for what they paid to the workers' compensation insurance
carrier. Thus, there is no potential whatsoever for double
dipping, he said.
SENATOR PASKVAN said there has been a question about whether the
worker's compensation remedy is adequate, but he would point out
that the workers' compensation system was never designed to be a
full remedy system. Within the true definition of
employer/employee, it has always been designed to be a partial
remedy that would be applied irrespective of fault. The idea was
to protect workers who were doing the work every day for their
employers. For example, if an unmarried 25-year-old worker with
no children were to be killed on a construction site through the
fault of someone else and not necessarily the employer, the
exclusive remedy now is reasonable funeral benefits. It's bad
social policy, he said, if there is immunity from killing
someone because of fault and the only responsibility is to the
workers' compensation policy, which is paid by the employer and
not necessarily the person at fault. The workers' compensation
system provides for no future lost wages and no general damages
to the children or spouse of a worker who had a crippling injury
or was killed. The workers' compensation system simply doesn't
compensate for that loss.
11:21:00 AM
SENATOR PASKVAN recapped that SB 303 addresses the notion that
responsibility and accountability attach when wrongful conduct
exists and that the exclusive remedy provision falls within the
true definition of the employer/employee relationship. SB 303
removes the immunity that currently protects a privileged class
from the consequences of their wrongful conduct. This will
promote the betterment of Alaska as a matter of social policy,
he concluded.
SENATOR WIELECHOWSKI asked, "If an employer under current law is
criminally negligent and…a subcontractor's employee is killed or
injured, would they be covered under existing law?"
SENATOR PASKVAN replied the general contractor is immune even
under the high moral standard of criminal negligence.
11:23:08 AM
SENATOR WIELECHOWSKI asked if there would be any recourse for
that injured, maimed or killed employee.
SENATOR PASKVAN replied their sole remedy would be workers'
compensation coverage. He continued to say:
Under the current law the definition of employer and
the exclusive remedy provisions of the law are very
expansive, so they include the entire vertical chain
within the definition of employer in order to be part
of the exclusivity protections that are given to what
one considers the direct employer. So the general
contractor in your example would be immune because
they come within the exclusive remedy provisions of
the workers' comp statutes.
SENATOR WIELECHOWSKI asked if SB 303 would fix that.
SENATOR PASKVAN answered yes.
SENATOR WIELECHOWSKI asked if under this bill a worker who was
injured or killed because of the criminal negligence of the
general contractor could get their worker's compensation award
and then sue the general contractor.
SENATOR PASKVAN replied that's correct.
SENATOR WIELECHOWSKI asked if there is an apportionment because
that's where the double-dipping argument would come up.
SENATOR PASKVAN replied if you were to assume that the general
contractor was 100 percent at fault, then the general contractor
would pay the injured worker 100 percent of the damages.
Workers' compensation would then be reimbursed so that there
would be no double recovery. It is expressly set forth in the
statute that irrespective of fault, medical expenses, potential
retraining, and a partial compensation of past wages will be
reimbursed to the workers' compensation insurer out of the
recovery from the 100 percent fault of the general contractor.
Irrespective of fault the employee recovers under workers'
compensation, but the question that remains is whether those
that are at fault would have a responsibility and accountability
to the injured worker. SB 303 says that those at fault should
have a responsibility to the injured worker.
11:26:15 AM
SENATOR COGHILL asked if there is still a tort liability to an
employer contractor who is under the exclusive liability.
SENATOR PASKVAN replied not if it's within the definition of a
true employee/employer relationship.
SENATOR COGHILL asked if the criminal liability would fall under
the exclusive exemption.
SENATOR PASKVAN said that's correct.
SENATOR COGHILL observed that the concept "if you break it you
fix it" doesn't apply. He asked what the recovery would be if
the employer contractor is under the exclusive liability and
somebody is damaged with a lifelong injury because workers'
compensation would become the sole remedy.
SENATOR PASKVAN explained that before the workers' compensation
system was developed about 100 years ago the injured employee
could sue the employer if the employer's fault caused the
injury. It wasn't until the Industrial Revolution that a concept
started to develop in America that the employer's business
product should bear the cost of the workers who were injured in
the course and scope of their employment and that the employee
should be compensated irrespective of fault. To balance the raw
capitalism with responsibility and accountability and the idea
that workers should be protected irrespective of fault, a
workers' compensation system was developed. That very good
system has been maintained in the U.S. for about 100 years and
in Alaska until 2004.
11:29:11 AM
SENATOR COGHILL said he's having a hard time understanding that
workers' compensation becomes the universal remedy if the
contractor has a subcontractor or an employee and there's a
problem. He's wondering if this creates the
employer/employee/subcontractor relationship that would be in
this exclusive liability class under workers' compensation while
the project owner is singled out as the "deep pockets" and has
to bear a tort liability for the actions of those within the
exclusive liability class regardless of the case. He asked for
help understanding that relationship.
SENATOR PASKVAN explained that outside of the direct
employee/employer relationship, everybody that is above the
subcontractor would be responsible for only their percentage of
the fault.
SENATOR COGHILL asked if that's within the workers' compensation
apportionment or a tort apportionment.
SENATOR PASKVAN replied a liability/tort apportionment of fault
above the employer/employee remains the exclusive remedy of
workers' compensation. For example, if anyone had an employee
within that direct employer/employee relationship, workers'
compensation is the only remedy that the injured employee can
have against the employer. Regardless of whether it's a general
contractor, a project owner, or a project manager, all of those
within the vertical chain above would be responsible and
accountable only for their apportioned fault.
SENATOR COGHILL asked if under that scenario there is still a
tort liability issue. He noted that the sponsor has appealed to
his sense of fairness, but it seems as though the employer and
the subcontractor live in the exclusive liability area and only
have a responsibility to the workers' compensation system.
Anybody outside of that including the manager, project manager,
or the project owner can be apportioned a cost if there is a
responsibility. He asked if that apportioned cost would be
assigned as a result of a lawsuit. If that's the case, he said
his understanding is that it would go into the workers'
compensation payment - hence the double dipping discussion.
11:32:58 AM
SENATOR PASKVAN said SB 303 would impose responsibility on a
project owner or general contractor under a tort system only if
fault were proven. The project owner, for example, would have no
responsibility for payment of the workers' compensation premium
that is the responsibility of the subcontractor. The only risk
that a project owner has is if they were at fault. Then if there
was an allocation or percentage of fault, the project owner
would only have risk for their allocated portion of 100 percent.
SENATOR COGHILL summarized that the exclusive liability of the
workers' compensation system is not adequate for certain
failures, but because of the employer/employee relationship,
even if it's a subcontractor, they live under those rules. He
added that it sounds like there's a desire to take the project
owners outside of that because they may have a negligence that
may be greater than what could be claimed under the exclusive
liability.
CHAIR FRENCH asked Senator Paskvan if he had practiced in this
area of law and if so, did he represent both sides.
SENATOR PASKVAN answered yes he's practiced for 30 years and for
the first 10 years he did both plaintiff work and defense work.
He said he has represented many general contractors doing
corporate work and has represented contractors that have been
involved in construction projects. It was those business owners
that would ask him to recover for the family of an injured or
deceased employee. In so doing the workers' compensation policy
would get paid back so it wouldn't be a black mark on the
subcontractor's workers' compensation policy and it wouldn't be
the subcontractor that bore the price of injury or death that
was caused by somebody else.
11:36:40 AM
CHAIR FRENCH commented that he was on the losing end of what was
a vigorously fought battle when the 100 years of settled law was
changed in 2004. He asked if SB 303 restores Alaska state law to
the pre 2004 state of fairness.
SENATOR PASKVAN said yes; the intent of SB 303 is to return
Alaska to the system that was created in statute in 1959.
CHAIR FRENCH asked the members to hold further questions for the
sponsor until they'd heard from witnesses who may provide a
contrasting point of view.
11:37:50 AM
KIP KNUDSON, External Affairs Manager, Tesoro Alaska, asked the
committee to set SB 303 aside because they were having the wrong
debate about the wrong issue. He said he specifically heard the
sponsor claim that workers' compensation is not sufficient and
that the majority of workers injured or killed are under the
exclusive remedy provision of the workers' compensation
arrangement. He continued to say that the discussion about
making a project owner pay their fair share is "noise on the
side." He said he believes that the 2004 reform created an
appreciable safety benefit for the Alaska workplace and
certainly for Tesoro Alaska.
MR. KNUDSON reminded the members that the last time the Senate
Judiciary Committee discussed a bill similar to SB 303 there was
a case before the Supreme Court that discussed whether the 2004
change violated equal protection. The decision in that case was
that no violation occurs. Now the discussion centers on who pays
when somebody is injured or hurt, he said.
MR. KNUDSON said his perspective of the 2004 change is that it
created a safety benefit, specifically by tearing down high
legal barriers that were erected pre 2004 between project owners
and contractors. These barriers were anything but conducive to a
safe workplace.
11:39:44 AM
MR. KNUDSON offered his belief that there is confusion about the
allocation of fault and control of the workplace that existed
prior to 2004 and he would like Mr. Clarkson to clarify those
key concepts.
KEVIN CLARKSON, private attorney, Anchorage, said he has
practiced in this area for quite some time and Tesoro asked him
to testify on this bill. Mr. Knudson specifically asked him to
address the underlying purpose of the workers' compensation law
in the pre 2004 context, that being that the employee was to be
relieved of the need to prove the employer's liability. He
explained that employees were to be given a certain remedy if
they were hurt while on the worksite. In exchange the employer
was supposed to get exclusive liability in the workers'
compensation system, but that's not what occurred.
MR. CLARKSON said he respectfully disagrees with the sponsor's
assertion that the old system was a "you break it you pay for
it" system. In reality what would happen is the project owner
would contract with a contractor or subcontractor and require
indemnification for anything that might happen that resulted in
injury to their employees while on the worksite. The result was
that the contractor or subcontractor - who were supposed to have
exclusive liability - would double pay. They would pay for the
workers' compensation and they would also pay for the third-
party tort liability because of the indemnity agreement they
made with the project owner.
11:42:42 AM
MR. CLARKSON said that from his perspective the benefit of the
2004 change is that it created an ability for the project owner
and the contractors to cooperate more fully to promote safety on
the worksite. Before 2004 if an owner like BP contracted with a
drilling contractor like Rowan Drilling to bring their rig and
employees onto the BP worksite to drill for oil and one of those
employees got hurt, Rowan would pay the workers' compensation
for its employee and the employee would sue PB for the third
party liability claiming that BP controlled the worksite and
thus had responsibility for making sure that the worksite was
safe. This is in spite of the fact the worksite for the employee
was Rowan Drilling's rig. But if BP had put even one employee on
the drilling rig or if it had contractually maintained any
safety oversight, BP would suddenly have a third-party liability
for everything that took place on Rowan's drilling rig that
resulted in the injury of the employee. The only way that BP
could remove itself from that risk was to remove itself from any
involvement in the safety aspects of the operation of the
drilling rig.
MR. CLARKSON said that giving the project owner exclusive
liability protection and the responsibility to see that workers'
compensation is provided creates an environment in which the
project owner and the contractor can cooperate and collaborate
to increase safety on the worksite. Under the old system
litigation became more complicated because of fault allocation.
For example, a project owner like Tesoro who owns a refinery in
Kenai could have somebody who is simply driving an asphalt truck
for a company that is contracted to deliver asphalt to a Tesoro
customer come on the worksite, climb onto their employer's
asphalt truck, fall off and get injured, and Tesoro would be
sued because the event occurred on their site. Tesoro would then
have to look for anybody or everybody to allocate fault to and
join those entities to the case. He related that he had been
involved in a case where that scenario occurred. The worker died
as a result of falling off his employer's tanker when it was on
the Tesoro refinery. To avoid liability Tesoro had to join a
series of other companies and entities to allocate fault. This
made the case more complicated and costly.
MR. CLARKSON recapped that the pre 2004 system was not one of
"if you break it you pay for it." Employers actually paid for
the workers' compensation and for the third-party liability,
whereas the current law creates an environment where safety can
be enhanced through cooperation.
11:45:23 AM
KEVIN DOUGHERTY, Attorney, Alaska Laborers, said he supports SB
303 as a means to get the workers' compensation law back on
track. He said he has represented Alaska Laborers since 1981 and
he served on Governor Hickel's workers' compensation committee
in 1990. He said he would make three points. First, the workers'
compensation law that was enacted in Alaska in 1915 was built on
traditional values and it was fair to widows and injured
workers. That changed in 2004 when the loophole was created.
Fortunately, SB 303 would close that loophole and restore that
long-standing law. Second, the bill would promote safety. He
related that in the '80s and '90s major strides were made in the
oil and construction industries with respect to safety, and
injuries decreased. There really didn't need to be a loophole in
the law to somehow promote safety, he said. Third, it's always
good public policy to ensure that statutes are honest and
straight forward. To that end, the definition of employer should
only include employers and not some other legal fiction.
MR. DOUGHERTY recapped that he supports SB 303 because it would
create an even playing field for everyone in the construction
industry and it would make the statutes straight forward and
honest. Alaskans would be well served by this, he concluded.
11:48:11 AM
JERRY LEE, representing himself, related that he was hurt in
November 2005 while working for a subcontractor who was working
for a general contractor. The job entailed building a
scaffolding for the general contractor who was supposed to
secure, tarp, and heat it before he and others used that
scaffolding. Following a terrible accident, he found out that
the general contractor hadn't properly secured the scaffolding.
Mr. Lee explained that he was on the third level when the wind
came up and blew the scaffolding over. Then the wall he and
others were working on collapsed and he was crushed. He lost the
use of a lower leg, has ongoing problems with his back, and is
30 percent disabled. He received worker's compensation and his
medical expenses are being paid currently. At the time of the
accident he was paid $42/hour and now he works for $10/hour.
"This needs to be changed," he said.
CHAIR FRENCH thanked him for taking the time to testify and said
it's always good to hear from people who have had real
experience under legal concepts that can sometimes seem
abstract.
MR. LEE added that this was his first accident in a 25-year
construction career and he'll never be able to work in field
again.
11:51:08 AM
BRAD THOMPSON, Director, Risk Management, Department of
Administration, said the 2004 amendment to the workers'
compensation statutes extended the statutory definition of
employer to both the contractor and the project owner. He noted
he is speaking from the perspective that the project owner is
generally the state. Pre 2004 the employee could have remedy
from workers' compensation through the subcontractor. If the
subcontractor was uninsured, the contractor had to pay but
weren't shielded from tort liability even though they paid the
worker's compensation benefit. Post 2004 both the general
contractor and impliedly the subcontractor are responsible for
workers' compensation. In fact, AS 23.30.045(d) obligates the
state before it awards a contract to see a certificate of
insurance from the general contractor showing that they have
workers' compensation. It also obligates the state to pay in the
event that the contractor or subcontractor is uninsured.
CHAIR FRENCH asked if there's anything in the law that requires
that to happen on jobs where BP, Exxon, or anybody other than
the state is the project owner.
MR. THOMPSON replied he doesn't believe that there is a
requirement for private enterprise to protect itself that way,
but it is common business practice to make sure that an
independent contractor is insured. That's a qualifier of their
capability of performance, he said.
11:54:46 AM
MR. THOMPSON continued to explain that when the state sees the
certificate of insurance, the state is noticed as a certificate
holder should that coverage lapse or not be paid. If the premium
isn't paid the coverage lapses, but the employees don't
necessarily know that. When the state is the project owner it
would receive a notice of cancellation and would have the
ability to take project funds to continue coverage. Clearly the
state is a good project owner with respect to maintaining
certainty that there is workers' compensation for the general
contractor and their employees, he said. Should there somehow be
a lapse, the state is the statutory employer and would retain
the obligation to pay the benefit should there be an unpaid
remedy under the Workers' Compensation Act to the contractor's
employee or impliedly the subcontractor's employee. That
wouldn't change under SB 303.
MR. THOMPSON continued:
When '04 was enacted, we didn't put a fiscal note in.
It did provide…a second way of us to be obligated to
pay the remedy of workers' comp. The first time was if
they were uninsured. And this is now undoing that
protection so we're back to where we were before. Our
practice will be the same - we make certain there is
coverage for the general. There's often concern about
a sub. Is he a sub? Is he an employee? … That's a
separate matter to address…. But the State of Alaska
and other municipalities are…careful before awarding a
contract and in maintaining the contract coverage to
make certain that the people working on those jobs are
receiving the benefit of workers' comp. We would lose
the protection of exclusive remedy if [SB] 303 is
enacted.
SENATOR WIELECHOWSKI asked, "If the state were criminally
negligent, under current law then the state's not liable,
correct?"
MR. THOMPSON replied AS 45.45.900 precludes you from having an
indemnity that protects you from your own sole negligence.
Depending on the facts, criminal negligence likely is sole
negligence. He explained that when the state lets contracts, the
terms and conditions include hold harmless and indemnity
provisions and the additional requirement of additional insured
status. The state pays for that extra protection on all its
projects and that extra cost is added to the project budget to
protect that comparative allocation, he said.
11:57:09 AM
CHAIR FRENCH closed public testimony and announced he would hold
SB 303 until the next hearing.
SB 222-SEX OFFENSES; OFFENDER REGIS.; SENTENCING
CHAIR FRENCH announced the consideration of SB 222.
11:58:23 AM
JERRY LUCKHAUPT, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, related that he was
directed to prepare a CS for SB 222 based on the House judiciary
CS for HB 298. Basically, 90 percent of this CS comes from that
House bill, he said.
Sections 1 and 2 are the same as the House bill and Section 3 is
slightly different.
CHAIR FRENCH noted that the change in Section 3 occurs on line
20. Since the crime is committed through clothing, the word
"anus" was changed to "buttocks."
MR. LUCKHAUPT agreed and said DOL suggested the change.
CHAIR FRENCH asked if it's too simplistic to say it's a
misdemeanor to touch somebody through clothing and it's a felony
to touch the skin, depending on the location.
MR. LUCKHAUPT explained that DOL said this statute was needed
because people were acting spontaneously. For example, someone
in a bar might spontaneously grab a woman's breast and she would
have no opportunity to say "No." to the contact before it
occurred. That would apply whether it was through clothing or
not. He said if DOL's interpretation is correct, then there's
still a slight loophole. If the lack of consent cannot be
communicated directly, then it would still apply to situations
where the breast is touched directly, and not through clothing.
CINDY SMITH, Chief of Staff to Senator French, put herself on
the record.
12:01:10 PM
MR. LUCKHAUPT said Sections 4 and 6 are the same as the House
version. Section 5 is slightly different because it does not
contain any of the language dealing with anime pornography that
the House Judiciary Committee adopted.
CHAIR FRENCH read the language on lines 6-8 in Section 5 and
asked what that is if it's not anime.
MR. LUCKHAUPT hypothetically described it as someone taking
Miley Cyrus's face and projecting it on someone's nude body. He
continued to explain that federal law and most state laws
consider it child pornography to superimpose the face of a real
child on someone else's body for the purpose of achieving sexual
gratification.
CHAIR FRENCH asked if superimposing an adult's face on a 12-
year-old child's body would be a crime under this bill.
MR. LUCKHAUPT replied "That would also count there too."
CHAIR FRENCH asked if it would be a crime if an adult body had
an 8-year-old's face superimposed.
MR. LUCKHAUPT answered yes.
12:04:24 PM
SENATOR WIELECHOWSKI asked if it would be a crime under this
bill to take Miley Cyrus's foot and superimpose it on a 35-year-
old woman's body.
MR. LUCKHAUPT replied, "Theoretically it could be - if you could
identify that foot as Miley Cyrus's as an actual child's foot."
CHAIR FRENCH asked if there wouldn't have to be conduct that is
described in AS 11.41.455.
MR. LUCKHAUPT said he was assuming that the foot would be
attached to a nude body or a pornographic image.
SENATOR WIELECHOWSKI asked whose state of mind it is - the
person superimposing the foot on the body or the person that's
viewing the foot.
MR. LUCKHAUPT replied there are provisions that provide that you
don't have to prove the actual identity of any particular child,
but in some cases you know the child is somewhat famous. In some
situations identification may be easy, but in others the state
may not be able to prove that it's a specific child and that it
constitutes child pornography.
SENATOR COGHILL mentioned the cybercrime's unit and noted that
it's clear that many people are engaging in illegal behavior,
but it's the most egregious that need to be caught first.
CHAIR FRENCH said that was his concern about anime. While it's
wrong and something people shouldn't be watching, it's not time
to bring a new offensive when so much evidence is not addressed
now.
MR. LUCKHAUPT said the U.S. Supreme Court ruled that you can
criminalize the cartoon depictions, but a finding that it's
obscene has to be included. Because of that secondary
requirement, there have been very few prosecutions of anime type
pornography in the federal system.
12:08:34 PM
MR. LUCKHAUPT continued. Sections 6, 7, 8 and 9 are the same as
the House bill except that a definition related to anime
pornography was removed. Sections 9, 10, and 11 are the same as
the House bill.
CHAIR FRENCH asked if Section 11 is the Miller test.
MR. LUCKHAUPT replied it's actually the Ginsberg v. New York
test related to supplying adults with things that they could
lawfully possess, but that minors might be restricted from
possessing. Most states seem to be using this test for
regulating the distribution of materials that could be
considered "adult" and restricting their distribution to
children.
Sections 12, 13, and 14 are the same as the House bill.
SENATOR COGHILL asked if alcohol or drugs had for any reason
been included before Section 13.
MR. LUCKHAUPT replied they are presumably included when there's
language about a victim who is particularly vulnerable or
incapable of resistance. There's also the catch-all phrase, "for
any other reason the person was substantially incapable of
exercising normal physical or mental powers of resistance."
Apparently that's come into question a time or two for DOL, but
that's been the understanding, he said.
Section 15 is the same as the House bill and Section 16 has a
change. He deferred to Ms. Smith for an explanation.
12:11:45 PM
SENATOR EGAN joined the meeting.
MS. SMITH explained that Senator French requested this change to
address a concern that there was no registerable offense for the
misdemeanor harassment charge. Section 16 makes it a
registerable offense on the second offense.
MR. LUCKHAUPT added that this was the spontaneous touching
through clothing section that was mentioned earlier. It also
removed the provision dealing with registration of sex offenders
and the fact that some people have been convicted of crimes in
other states.
SENATOR COGHILL asked what the conviction criteria were for
touching through clothes that will now be a registerable
offense.
CHAIR FRENCH said the elements of the crime are on page 2, lines
17-20. It would be a misdemeanor for the first conviction so the
person would go to jail for a year, but wouldn't have to
register as a sex offender thereafter. On the second offense the
person would have to register as a sex offender.
SENATOR COGHILL surmised that it wouldn't happen very often.
CHAIR FRENCH related that when he was a prosecutor C felonies
were referred from Chilkoot Charlie's about once a month. The
cases are difficult to prove, but with the right witness they
could go forward. Most of those cases would resolve this way,
but now it's the charge is matched to the crime, he said.
12:14:21 PM
MR. LUCKHAUPT continued. Section 17 is the same as the House
bill. It relates to the subpoena power of the attorney general
for identifying material in an Internet service account in cases
involving exploitation of children.
CHAIR FRENCH admitted that he's a little queasy with this
significant expansion of the subpoena power, but he believes
that it's narrow and focused and it would be difficult to claim
that the information that is gleaned is the type that is private
between the account holder and the service provider. He asked
Mr. Luckhaupt to list the types of information that could be
obtained by serving the subpoena.
MR. LUCKHAUPT said it includes the name of the person holding
the account, the address associated with the account, telephone
numbers connected to the account, the length of service, the
network address, and the means and source of payment for the
account. He noted that those are all included in the federal law
that deals with this issue. This law was taken from Kentucky.
The subpoena does not allow access to any information in the
account like email records. It's just identifying information.
There is case law in Alaska that says that the identifying
characteristics for a utility account, for example, are not
protected under the right to privacy in the Alaska Constitution.
The problem is that utilities or ISPs are reluctant to release
the information without a subpoena even though the information
is probably not protected.
12:17:06 PM
MR. LUCKHAUPT said Section 18 is new.
MS. SMITH explained that this section is a result of the
hearings the committee had last summer. One thing that was
identified was the dire need to collect accurate statistics
regarding the actual level of felony sex crimes committed in the
state. Currently the state collects only Uniform Crime Report
(UCR) data, which includes only forcible sexual penetration of
an adult woman against her will. This provision would be a
mandate for The Department of Public Safety (DPS) to begin to
require reporting from law enforcement agencies on all types of
felony sexual assaults as they are proscribed in the state in
order to begin to get accurate data.
CHAIR FRENCH recalled hearing that a lot of police departments
simply aren't reporting. This is the kind of arm twist we had in
mind to encourage reporting, he said.
MR. LUCKHAUPT said Section 19 is a court rule amendment dealing
with the distribution of materials in cases of child
pornography. This provision is basically the same as the
relevant portion of a law that Congress passed several years
ago. That federal statute has been interpreted in Alaska and
applied. The operative provision is whether or not the property
is deemed reasonably available to the defendant to use in their
defense. To the extent that a hard drive, for example, was made
reasonably available and the defense could perform their
examination on site then it would be acceptable. He noted that
there had been a U.S. district court case in Alaska where the
hard drive was in Spokane Washington. The FBI office had
possession of the hard drive and would only let the defense
examine it during certain hours and with supervision. This could
conceivably give the prosecution an idea of what the defense was
trying to do at what could be considered an improper time, he
said. In that particular case the U.S. district court magistrate
found that the materials were not reasonably available to the
defendant.
12:20:53 PM
CHAIR FRENCH said he read the case and believes that Magistrate
Burgess made a thoughtful decision. He was struggling with the
need to keep a lid on the material while at the same time
providing the defense with a real opportunity to do its work. It
takes time to do a forensic examination of a hard drive and if
it's located in a place that's difficult for the expert to get
to that adds time, expense, and delay to the process. It was
interesting that the magistrate pointed out that in the cases
that were brought to his attention in the motion practice, the
only time that any information had been lost it was by the
government, not by the defense.
MR. LUCKHAUPT added that the defense would need to show why they
wouldn't be able to their examination in the prosecution's or
the law enforcement's office. This leaves it up to the judge to
make those decisions.
SENATOR FRENCH summarized that it keeps the material within the
domain of the district attorney's office, but it has to be in a
place where the defense has freedom to work.
MS. SMITH clarified that the provision regarding the mental
state of a person who fails to register that was in the original
version of SB 222 is not in the current CS. Thus, the existing
law would apply where a mental state would have to be proven.
That's the section that deals with the registration of out-of-
state offenders, which was in the original version and is not in
the CS.
12:23:20 PM
SUSAN MCLEAN, Director, Civil Division, Department of Law (DOL),
said she would provide introductory comments today, but DOL will
want to talk about the deletion of former Section 3 [The repeal
and reenactment of AS 11.56.840.]
CHAIR FRENCH said that's the provision that eliminated the
mental requirement for failure to appear and failure to
register.
MS. MCLEAN replied it actually reads the same as the current
statute. What it does is add an affirmative defense and then the
enabling language explains the circumstance of failing to
register. This crime has always had a mental state and that is
that the person has to know that they have to register.
Last year the court of appeals decided a case called Moffitt v.
State saying that the state has to prove some mental state -
knowingly, recklessly or negligently. Then a week ago that same
court of appeals decided a case of a DUI involving Nyquil. The
defense was on the grounds that the driver didn't know that
Nyquil would make him drunk. The court said that in that
circumstance the mental state of not knowing that it would make
you drunk is negligently. This puts DOL in the difficult
position of having to disprove a negative, she said.
MS. MCLEAN, noting that Moffitt applies to the crime of failure
to appear, said the state has never had a decision in failure to
register as a sex offender that says that the state has to prove
why the person didn't register. That's the burden Moffitt places
and it's unattainable. It's not possible to disprove why someone
didn't do something particularly in a state that doesn't have
reciprocal discovery. She pointed out that Moffitt relies on
Hutchinson and in each of those cases the defense asked for an
instruction saying it should be able to defend on the ground
that "I knew I was supposed to be here, but for whatever reason
I couldn't be here."
MS. MCLEAN said that with failure to register as sex offender,
DOL has never had anyone raise the issue of not being able to
register, but that's partly because of the way those statutes
are written. For example, if someone who has to register is
going to be out of town the law requires the person to notify
the Department of Public Safety (DPS) before they leave so the
defense that they couldn't get back to town and register by the
deadline is sort of questionable.
12:26:59 PM
MS. MCLEAN said the issue for DOL is that it cannot as part of
its burden of proof prove why someone didn't register and that
it wasn't reasonable. They are required to prove beyond a
reasonable doubt that a person knew he or she had to register.
But, she said, as far as why that didn't occur, it's DOL's
position that it should be an affirmative defense.
She related that just this morning she read that an ombudsman
attorney made a suggestion that perhaps a compromise would be to
place a negligent mental state on the failure to register. DOL
could live with that, she said.
CHAIR FRENCH agreed the committee could explore that.
MS. MCLEAN said the other part of Section 3 in the original bill
related to the duty to register if one had to register in
another state. A legitimate issue is what should happen if a
registerable offense in another state has not been criminalized
in Alaska. For example, consensual adultery and consensual
fellatio are not crimes here, but they are in other
jurisdictions. Rather than disposing of the entire section, DOL
would suggest an amendment to accept consensual acts between
adults. The people doing the sex offender registration often get
questions from other states about whether or not this is a
registerable offense here. She noted that when DOL asked DPS for
a list of crimes that are registerable in other states and not
here, they were surprised to see mutilation of female genitals
on the list. In this state that would be an assault, not a
registerable offense. We're asking for this because people do
call before they move here to determine whether or not they have
to register and if they get an advisory opinion that they don't,
they move here. We'd like that decision to be reconsidered, she
said.
12:30:31 PM
MS. MCLEAN noted that DOL submitted language to reword the new
Section 17. One suggestion was to exclude credit card or bank
account numbers because of the legitimate privacy concerns. She
pointed out that the subpoenaed person that is mentioned in
subsection (c) probably won't petition the court to modify or
set aside the subpoena because the subpoenaed person is the bank
and they just want their potential liability covered. They
probably won't assert the privacy interest that someone may have
in their bank account number or credit card number if they have
a subpoena in hand.
CHAIR FRENCH asked if the committee should substitute that
phrase with "the target of the subpoena."
MS. MCLEAN suggested he look at the language DOL provided, which
synthesizes all of it and addresses any possible constitutional
challenges.
CHAIR FRENCH asked how closely DOL's language tracks the
language in the federal administrative subpoena because the
language in the CS was lifted from that federal law.
MS. MCLEAN replied it tracks it closely, but not identically.
DOL believes that the exact federal language would present
problems with the state's constitutional right to privacy.
CHAIR FRENCH thanked her for providing an overview of the issues
and asked her to feel free to meet with Ms. Smith to articulate
other suggestions and concerns.
12:33:33 PM
SENATOR WIELECHOWSKI moved to adopt the work draft committee
substitute for SB 222, labeled 26-GS2859\E, as the working
document. There being no objection, version E was before the
committee.
He asked Mr. Mittman if he had seen the new CS.
JEFFREY MITTMAN, Executive Director, ACLU of Alaska, said he
sent a request for a copy and he'd like an opportunity to review
it before submitting written and verbal comments.
SENATOR FRENCH said that sounds eminently fair and he set SB 222
aside for final work on Wednesday.
12:35:16 PM
The Senate Judiciary Standing Committee meeting was recessed
until 8:30 a.m. Wednesday, April 7, 2010.
| Document Name | Date/Time | Subjects |
|---|