Legislature(1993 - 1994)

03/31/1993 01:55 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                   SENATE JUDICIARY COMMITTEE                                  
                         March 31, 1993                                        
                           1:55 p.m.                                           
                                                                               
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
 Senator Robin Taylor, Chairman                                                
 Senator Rick Halford, Vice-Chairman                                           
 Senator George Jacko                                                          
 Senator Dave Donley                                                           
 Senator Suzanne Little                                                        
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
 NONE                                                                          
                                                                               
  OTHERS ATTENDING                                                             
                                                                               
 Senator Loren Leman                                                           
 Representative Cynthia Toohey                                                 
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
 SENATE BILL NO. 67                                                            
 "An Act amending provisions of ch. 66, SLA 1991, that relate                  
 to reconstitution of the corpus of the mental health trust,                   
 the management of trust assets, and to the manner of                          
 enforcement of the obligation to compensate the trust; and                    
 providing for an effective date."                                             
                                                                               
 CS FOR SENATE BILL NO. 44(JUD)                                                
 "An Act relating to civil liability for skiing accidents,                     
 operation of ski areas, and duties of ski area operators and                  
 skiers; and providing for an effective date."                                 
                                                                               
 HOUSE BILL NO. 120                                                            
 "An Act changing the date by which jury lists must be                         
 prepared; requiring the use of the list of the current year's                 
 permanent fund dividend applicants in preparing the jury list;                
 and changing the date by which state departments must submit                  
 certain lists to the Alaska Court System."                                    
                                                                               
 CS FOR HOUSE BILL NO. 152(JUD)                                                
 "An Act relating to magistrate jurisdiction."                                 
                                                                               
 CS FOR HOUSE BILL NO. 64(FIN)                                                 
 "An Act creating the crimes of stalking in the first and                      
 second degrees and providing penalties for their violation;                   
 providing a peace officer with the authority to arrest without                
 a warrant a person the peace officer has reasonable cause to                  
 believe has committed stalking; relating to the release before                
 trial of a person accused of stalking; prohibiting the                        
 suspension of imposition of sentence of a person convicted of                 
 stalking; relating to the crime of assault in the third                       
 degree; and providing for an effective date."                                 
                                                                               
 SENATE BILL NO. 73                                                            
 "An Act relating to the time for filing certain civil actions;                
 and providing for an effective date."                                         
                                                                               
 HOUSE BILL NO. 99                                                             
 "An Act repealing the 65-day time limit for approval or                       
 disapproval of a proposed oil discharge contingency plan by                   
 the Department of Environmental Conservation; and providing                   
 for an effective date."                                                       
 SCHEDULED BUT NOT HEARD TODAY.                                                
                                                                               
 HOUSE BILL NO. 144                                                            
 "An Act relating to fees for certain costs of administering                   
 the permanent fund dividend program."                                         
 SCHEDULED BUT NOT HEARD TODAY.                                                
                                                                               
  PREVIOUS SENATE COMMITTEE ACTION                                             
                                                                               
 SB 67 -  See Resources minutes dated 2/3/93 and 2/5/93.                       
          See Judiciary minutes dated 3/1/93, 3/8/93, 3/24/93,                 
          and 3/29/93.                                                         
                                                                               
 SB 44 -  See Labor and Commerce minutes dated 1/19/93,                        
          1/21/93, and 1/26/93.  See Judiciary minutes dated                   
      3/5/93, 3/17/93, and 3/26/93.                                            
                                                                               
 HB 120 - NONE.                                                                
                                                                               
 HB 152 - NONE.                                                                
                                                                               
 HB 64 -  See Judiciary minutes dated 2/19/93, 3/22/93, and                    
          3/24/93.                                                             
                                                                               
 SB 73 -  See Labor & Commerce minutes dated 2/9/93.                           
                                                                               
 HB 99 -  NONE.                                                                
                                                                               
 HB 144 - NONE.                                                                
                                                                               
  WITNESS REGISTER                                                             
                                                                               
 Annie Williams                                                                
 Municipality of Anchorage                                                     
 P.O. Box 196650                                                               
 Anchorage, Alaska 99519-6650                                                  
   POSITION STATEMENT: Supported SB 44.                                        
                                                                               
 Marc Bond, Attorney                                                           
 Delaney, Wiles, Hays, Reitman                                                 
 and Brubaker, Inc.                                                            
 1007 West 3rd Ave., #400                                                      
 Anchorage, Alaska 99501                                                       
   POSITION STATEMENT: Supported SB 44.                                        
                                                                               
 Dennis Mestas, Attorney                                                       
 Mestas and Schneider                                                          
 880 N Street, #202                                                            
 Anchorage, Alaska 99501                                                       
   POSITION STATEMENT: Opposed SB 44.                                          
                                                                               
 Gretchen Pence, Special Assistant                                             
 Department of Public Safety                                                   
 P.O. Box 111200                                                               
 Juneau, Alaska 99811-1200                                                     
   POSITION STATEMENT: Testified on SB 44.                                     
                                                                               
 Chris Christensen, Staff Counsel                                              
 Judicial Branch                                                               
 303 K Street                                                                  
 Anchorage, Alaska 99501-2084                                                  
   POSITION STATEMENT: Testified on HB 120 & HB 152.                           
                                                                               
 Henry Springer                                                                
 Box 232114                                                                    
 Anchorage, Alaska 99523                                                       
   POSITION STATEMENT: Supported SB 73.                                        
                                                                               
 Dick Cattanach                                                                
 8101 Old Seward Highway                                                       
 Anchorage, Alaska 99518                                                       
   POSITION STATEMENT: Supported SB 73.                                        
                                                                               
 Doug Green                                                                    
 Alaska Professional Design Council                                            
 901 West 29th Avenue                                                          
 Anchorage, Alaska 99503                                                       
   POSITION STATEMENT: Supported SB 73.                                        
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
 TAPE 93-34, SIDE A                                                            
 Number 001                                                                    
                                                                               
  Chairman Robin Taylor  called the Judiciary Committee meeting                
 to order at 1:55 p.m.                                                         
                                                                               
 SENATOR TAYLOR returned CS FOR SENATE BILL NO. 67(JUD) (MENTAL                
 HEALTH TRUST AMENDMENTS) to committee for further action.                     
                                                                               
 SENATOR HALFORD moved to rescind the action on CS FOR SENATE                  
 BILL NO. 67(JUD) of 3/29/93.  Without objections, so ordered.                 
                                                                               
 SENATOR LITTLE moved to pass CS FOR SENATE BILL NO. 67(JUD)                   
 as amended (8-LSO409\K) from committee with individual                        
 recommendations.  Without objections, so ordered.                             
                                                                               
 SENATOR TAYLOR returned CS FOR SENATE BILL NO. 44(JUD) (CIVIL                 
 LIABILITY FOR SKIING ACCIDENTS) to committee and noted the                    
 sponsor, SENATOR KELLY, was present.                                          
                                                                               
 SENATOR TAYLOR turned to the teleconference network to invite                 
 ANNIE WILLIAMS, the Legislative Officer for the Municipality                  
 of Anchorage, to testify.                                                     
                                                                               
 Number 059                                                                    
                                                                               
 MS. WILLIAMS said the municipality supported the legislation;                 
 however, she referred to page 5, lines 1 through 11 and asked                 
 to have that section amended to provide for rope tows that                    
 do not transport skiers more than 500 vertical feet.                          
                                                                             
 SENATOR TAYLOR clarified her testimony dealing with the                       
 standards as set by the National Ski Patrol and explained the                 
 committee substitute included the provisions she wanted.                      
                                                                               
 MS. WILLIAMS did not have the draft he identified, so SENATOR                 
 TAYLOR directed a copy of CS FOR SENATE BILL NO. 44(JUD) to                   
 be faxed to her in Anchorage.  He asked her to report back to                 
 committee on the changes that have been made, if she was not                  
 satisfied.                                                                    
                                                                               
 (There was a pause in the proceedings.)                                       
                                                                               
 Number 134                                                                    
                                                                               
 SENATOR LITTLE moved to amend SB 44 to insert on page 4, line                 
 6, after "chapter" , a provision of a ski area plan, or a                   
 regulation adopted by the Department of Labor under AS                        
 05.20.070 is negligent and civilly liable to the extent the                   
 violation causes injury to a person or damage to property.                    
                                                                               
 SENATOR KELLY objected to the amendment, and SENATOR LITTLE                   
 thought the amendment would be helpful because many items in                  
 the ski area plan were critical in nature and should be                       
 followed.                                                                     
                                                                               
 MR. BOND said the bill already requires the ski operator to                   
 prepare and implement the plan throughout the season.  He was                 
 concerned it would have the effect of being a statute, and he                 
 predicted area operators would pare down their operation                      
 plans, because whatever they write in their plan would be an                  
 obligation.                                                                   
                                                                               
 SENATOR TAYLOR clarified it would define at what stage it is                  
 inherent risk or negligence, and MR. BOND said it would make                  
 a different standard of negligence for each skier.  They                      
 discussed the implementation of such a plan.                                  
                                                                               
 SENATOR KELLY explained the object of the plan was to provide                 
 safety for the skier, and he agreed the operators would have                  
 the smallest operational plan possible.                                       
                                                                               
 Number 197                                                                    
                                                                               
 SENATOR LITTLE debated her understanding that terrific plans                  
 existed in place, but critical parts of the plan were not                     
 being implemented, and she defended her amendment which would                 
 require implementation.                                                       
                                                                               
 SENATOR KELLY also thought the plans should be implemented,                   
 and he noted it was on page 5, (a).  He added the ski areas                   
 were presently not specifically required to implement them.                   
                                                                               
 SENATOR TAYLOR checked the teleconference network to contact                  
 DENNIS MESTAS, who had submitted some proposed amendments to                  
 SB 44.                                                                        
                                                                               
 SENATOR TAYLOR reviewed SENATOR LITTLE's amendment for MR.                    
 MESTAS, who agreed with her amendment.                                        
                                                                               
 There being no objection from committee members, SENATOR                      
 LITTLE's amendment was passed.                                                
                                                                               
 Since MR. MESTAS was not physically present, SENATOR TAYLOR                   
 presented each of his amendments for consideration.  He said                  
 he would give MR. MESTAS a chance to explain his amendments,                  
 and MR. BOND a chance for rebuttal.                                           
                                                                               
 Number 260                                                                    
                                                                               
 SENATOR TAYLOR moved to adopt Amendment 13, MESTAS, on page                   
 3, lines 15 through 23.                                                       
                                                                               
 MR. MESTAS explained the purpose of the amendment was to                      
 eliminate superfluous language dealing with the supreme court                 
 opinion.                                                                      
                                                                               
 There was some discussion with MR. MESTAS as to the scope of                  
 his amendment, and SENATOR TAYLOR determined there were                       
 actually two different amendments, hence, the proposed                        
 amendments became 13A and 13B.                                                
                                                                               
 After clarification, SENATOR TAYLOR moved to adopt Amendment                  
 13A on page 3, lines 14 and 15 to delete [,AS INTERPRETED BY                  
 THE ALASKA SUPREME COURT IN HIIBSCHMAN V. CITY OF VALDEZ, 821                 
 P.2d 1354, (ALASKA 1991)].                                                    
                                                                               
 MR. BOND explained the relationship of the bill to the supreme                
 court decision in Hiibschman v. City of Valdez with inherent                
 risk injuries.  He quoted JUSTICE EDMOND BURK pondering the                   
 meaning of the decision as being extraordinarily unclear.  MR.                
 BOND said the statement, MR. MESTAS wishes to delete, is                      
 critical.                                                                     
                                                                               
 Number 337                                                                    
                                                                               
 SENATOR LITTLE asked MR. MESTAS to respond to the statement                   
 by MR. BOND.  MR. MESTAS gave his interpretation of the                       
 Hiibschman Decision as containing a lot of law, and he                        
 defended his understanding of the decision about inherent                     
 risks and man-made structures.                                                
                                                                               
 SENATOR TAYLOR quizzed both attorneys on the accident that                    
 brought about the Hiibschman case, the indecision by the                      
 supreme court, and the remanding of the case back to the                      
 superior court for a finding in the inherent risk of skiing.                  
                                                                               
 Number 372                                                                    
                                                                               
 MR. BOND explained the court decided they couldn't determine                  
 whether it was a man-made jump or a natural feature of the                    
 hill, and he described the accident as to the type of risk.                   
                                                                               
 SENATOR TAYLOR asked MR. MESTAS for his opinion, and MR.                      
 MESTAS explained his understanding the ski area was directly                  
 involved in creating the jump.                                                
                                                                               
 SENATOR JACKO objected to Amendment 13A, and in a vote the                    
 amendment failed.                                                             
                                                                               
 SENATOR TAYLOR moved to adopt Amendment 13B, MESTAS, on page                  
 3, lines 22 and 23, to delete Subsection (4).                                 
                                                                               
 SENATOR JACKO objected for an explanation.                                    
                                                                               
 MR. BOND explained the subsection as being an important                       
 statement regarding the legislative intent of the bill, and                   
 he defended the importance of the language.                                   
                                                                               
 MR. MESTAS explained the subsection was unnecessary because                   
 it already was the law, and there was no need to restate it.                  
                                                                               
 Number 419                                                                    
                                                                               
 With consent of committee, SENATOR TAYLOR withdrew Amendment                  
 13B.                                                                          
                                                                               
 SENATOR TAYLOR moved to adopt Amendment 14, MESTAS, on page                   
 3, lines 30 and 31, and on page 4, lines 1 and 2, to delete                   
 Subsection (2).                                                               
                                                                               
 SENATOR JACKO objected for an explanation, and SENATOR TAYLOR                 
 called on MR. MESTAS.                                                         
                                                                               
 MR. MESTAS said this amendment was one of the most critical.                  
 He explained why it was unworkable in the instruction of a                    
 jury on the law of negligence, and how it differed from the                   
 present law on negligence.  He suggested a percent of injury                  
 would be attributed to every part of the ski area, and he                     
 described how absurd that would be.                                           
                                                                               
 MR. BOND agreed with MR. MESTAS' explanation and explained                    
 why.                                                                          
                                                                               
 There being no objection, SENATOR TAYLOR announced Amendment                  
 14 passed.                                                                    
                                                                               
 SENATOR TAYLOR moved to adopt Amendment 15, MESTAS, on page                   
 5, lines 2 through 10, which would delete (a), (1) and (2) of                 
 Section 05.45.040.  SENATOR JACKO objected for sake of                        
 discussion.                                                                   
                                                                               
 Number 461                                                                    
                                                                               
 MR. MESTAS questioned the elements of the plan of operation                   
 and by whom would it be implemented and regulated.  Rather                    
 than deleting the specified subsections, MR. MESTAS decided                   
 rather to insert additional language which would increase the                 
 stringency of the operating plans after the word, "aid," on                   
 line 6.  He thought there didn't appear to be adequate public                 
 comment on what was going to be in the operating plan.                        
                                                                               
 The sponsor of SB 44, SENATOR KELLY, stressed the Department                  
 of Public Safety did not wish to be involved, and SENATOR                     
 TAYLOR entertained a motion to delete Public Safety and                       
 substitute the Department of Natural Resources.  He was                       
 informed this had been done.                                                  
                                                                               
 SENATOR LITTLE and SENATOR TAYLOR discussed who would be                      
 responsible, and SENATOR TAYLOR emphasized there had to be                    
 some responsible agency.                                                      
                                                                               
 Number 508                                                                    
                                                                               
 MR. BOND explained that ski operation plans were highly                       
 individualized, and he objected to regulations that would                     
 apply to all ski areas in the State of Alaska.  He preferred                  
 to see the plans tailored to specific ski areas, and he had                   
 some problems with the definition of stringent.  He suggested                 
 the regulations should be left to the Department of Natural                   
 Resources with their expertise.                                               
                                                                               
 SENATOR LITTLE expressed concern that with the amendment, ski                 
 operators could pare down their area operation plan.  MR. BOND                
 surmised area operators would do the absolute minimum, and he                 
 thought the Department of Natural Resources should review the                 
 plans for changes each year.                                                  
                                                                               
 MR. MESTAS cited (c) on line 19, as specifying the state would                
 not be liable for civil damages resulting from review and                     
 approval of the operation plan.  He asked the record to                       
 reflect it would be a misinterpretation of Subsection (c).                    
 MR. BOND said (c) was recently added by the committee.                        
                                                                               
 SENATOR JACKO maintained his objections, and Amendment 15                     
 failed on vote.  SENATOR TAYLOR expressed his difficulty with                 
 the word, stringent, also.                                                    
                                                                               
 SENATOR TAYLOR moved to adopt Amendment 16, MESTAS, on page                   
 8, lines 22 through 31, which would revise Subsection (4) on                  
 line 22.                                                                      
                                                                               
 MR. MESTAS described what he considered mixed messages to the                 
 public on the marking of "man made structures," and he was                    
 concerned there was some limit in the responsibility of man-                  
 made structures.  He had some problems with the definition in                 
 what he considered the "natural" variations on the slopes.                    
                                                                               
 SENATOR TAYLOR was skeptical over the object of MR. MESTAS'                   
 amendment, and SENATOR LITTLE asked about the removal of the                  
 portion he had faxed to the committee, beginning with "natural                
 variations," inserted after "include" on line 29.                             
                                                                               
 SENATOR LITTLE asked if he planned to eliminate the last                      
 section of Subsection (4), and KENNY LEAF, aide to SENATOR                    
 TAYLOR explained why he had underlined the last part of (4).                  
                                                                               
 Number 577                                                                    
                                                                               
 SENATOR TAYLOR quizzed MIKE FORD, the drafter of SB 44, about                 
 the section in question.  MR. FORD suggested that MR. MESTAS                  
 was trying to clarify the section by adding "natural" before                  
 variations on line 29 and put a ; after terrain.                        
                                                                               
 TAPE 93-34, SIDE B                                                            
 Number 001                                                                    
                                                                               
 MR. FORD explained, if the committee wanted to change the                     
 exclusion, the remainder of the sentence could be deleted.                    
                                                                               
 SENATOR TAYLOR checked the changes on the work draft, and                     
 SENATOR LITTLE asked MR. MESTAS if he intended to add, on line                
 22, after "water pipes," roads, catwalks, and terrain                        
 modifications.  MR. MESTAS said he did make the additions on                 
 line 22.                                                                      
                                                                               
 SENATOR TAYLOR clarified Amendment 16 on line 22 and line 29.                 
                                                                               
 MR. BOND reviewed the hazards of skiing, including man-made,                  
 with the redesigning of contour slopes for easier access for                  
 various reasons.  He claimed the bill already requires the                    
 marking of some physical objects, and he referred to MR.                      
 MESTAS ' proposed amendment on page 9, lines 5 through 7.  MR.                
 BOND envisioned a sea of bamboo if the amendment was allowed,                 
 and he gave an example from the Alyeska Resort.                               
                                                                               
 SENATOR DONLEY reviewed the arguments and added his own for                   
 safety on the ski slopes.  He expected the hazards to be                      
 marked, especially since he was spending a large amount of                    
 money to ski.  He thought marking hazards was the only                        
 redeeming feature of the bill, but he thought the bill was                    
 lacking in the protection of public policy.                                   
                                                                               
 SENATOR TAYLOR called for questions on Amendment 16, and on                   
 a 3-2 vote, the amendment passed.                                             
                                                                               
 Number 068                                                                    
                                                                               
 SENATOR TAYLOR offered Amendment 17A, on page 9, lines 1                      
 through 4, and asked MR. MESTAS to explain his amendment.                     
                                                                               
 MR. MESTAS explained the amendment would change the word,                     
 "groomed," after "located on," to open, on line 2, and he                   
 explained his reasons.  He claimed the most hazardous spots                   
 are on the un-groomed runs at Alyeska, and he thought there                   
 was no rationale for not marking un-groomed runs.                             
                                                                               
 MR. MESTAS explained the present language would severely                      
 downgrade the responsibility of Sabu at Alyeska, where they                   
 are presently required to mark hazards without limitation to                  
 groomed runs, as well as hazards on their primary and open                    
 runs.                                                                         
                                                                               
 MR. BOND said there was no possible way to mark all of the                    
 natural hazards on the entire mountain, and he described how                  
 the terrain can change quickly with the variety in weather.                   
 He thought marking groomed runs made a substantial burden on                  
 the area operator, and the operators would not be able to                     
 comply with the amendment.                                                    
                                                                               
 MR. MESTAS said that philosophy would mean the committee was                  
 wasting time with the entire bill, and he suggested a good                    
 common sense marking policy such as in Appendix J of the                      
 Eaglecrest Plan would be best.  He said hazards should be made                
 reasonably visible before they were hit.                                      
                                                                               
 Number 129                                                                    
                                                                               
 SENATOR TAYLOR suggested MR. MESTAS had raised an interesting                 
 point, and he was bothered by MR. BOND's comments on grooming.                
                                                                               
 MR. BOND said the desire for grooming was driven by the                       
 demands of the skier population, so area operators were going                 
 to groom no matter what, and he described how a grove of trees                
 would need to be marked as the weather changed on a minute by                 
 minutes basis.                                                                
                                                                               
 SENATOR TAYLOR and MR. BOND discussed what hazards would need                 
 to be designated with bamboo markers.                                         
                                                                               
 SENATOR TAYLOR reviewed Amendment 17A, and it passed the                      
 committee.  Without objections, so ordered.                                   
                                                                               
 SENATOR TAYLOR moved to adopt Amendment 17B, MESTAS, on page                  
 9, lines 5 through 7, which would delete [(C) MARK ROADS,                     
 CATWALKS, OR OTHER TERRAIN MODIFICATIONS THAT ARE NOT READILY                 
 VISIBLE TO SKIERS UNDER CONDITIONS OF ORDINARY VISIBILITY FROM                
 A DISTANCE OF AT LEAST 100 FEET;].                                            
                                                                               
 MR. FORD explained the previous amendment now makes this                      
 provision unnecessary.                                                        
                                                                               
 SENATOR TAYLOR announced Amendment 17B had passed committee.                  
 Without objections, so ordered.                                               
                                                                               
 SENATOR TAYLOR moved to adopt Amendment 18, MESTAS, on page                   
 9, lines 9 through 31, and asked MR. MESTAS to explain his                    
 proposed amendment.                                                           
                                                                               
 Number 177                                                                    
                                                                               
 MR. MESTAS said he was suggesting by Amendment 17 that, first                 
 of all, a correct statement of the law be made to people who                  
 are reading the sign, since, he contended, the present form                   
 of the warning is not correct under this bill, nor the law as                 
 it was previously.  He said skiers are going to be told by the                
 legislature that virtually under no circumstances can they                    
 ever recover from a ski area.  He suggested the legislature                   
 was mandating legal advice and would be responsible in the                    
 event of an accident.                                                         
                                                                               
 SENATOR TAYLOR asked for MR. BOND's response.  MR. BOND said                  
 the warning sign was displayed in every ski area in Colorado                  
 and was generally uniform across the country.  He denied it                   
 was legal advice, but he said was information about the                       
 inherent risks of skiing.  He said it was to inform a person                  
 before they become a patron that there are certain inherent                   
 risks listed by the legislature in the statute.  He said they                 
 could then choose whether or not to incur those risks, and he                 
 compared it to warning labels on tobacco products.                            
                                                                               
 MR. BOND offered an alternative borrowed from the current                     
 Minnesota proposal which would require operators to provide                   
 skiers with a full copy of the statute upon request and would                 
 inform the patrons fully, not piecemeal such as suggested in                  
 the bill.                                                                     
                                                                               
 In playing the devil's advocate, SENATOR TAYLOR reviewed the                  
 proposed warning supported by MR. BOND in the legislation,                    
 which would prohibit a skier from recovering from a ski area                  
 operator for an injury resulting from a list of inherent                      
 dangers and risks of skiing.  He asked MR. BOND why it                        
 wouldn't be fair to tell the skiers from what things they                     
 could recover.                                                                
                                                                               
 MR. BOND explained why it would be unacceptable to the                        
 industry, and he argued it would be an invitation to sue.  He                 
 blamed MR. MESTAS for wanting an open invitation to sue ski                   
 area operators.  MR. BOND then suggested saying, "Under Alaska                
 law the risk of an injury to a person or property resulting                   
 from an inherent danger of risk of skiing rests with the                      
 skier, and inherent risks include ...."  He thought this would                
 get away from the accusation of legal advice.  With this, he                  
 also suggested having copies of the statute available for any                 
 patron who wants it.  He reiterated his objection to putting                  
 an invitation to sue on a sign board beside a chairlift.                      
                                                                               
 SENATOR TAYLOR corrected MR. MESTAS' amendment to include the                 
 word "solely," after the word, "resulting" in two places on                   
 lines 24 and 26, and he checked with MR. MESTAS, who said he                  
 was correct.                                                                  
                                                                               
 SENATOR LITTLE asked MR. MESTAS about an inconsistency in the                 
 language in the warning sign and how it related to flagging.                  
                                                                               
 Number 247                                                                    
                                                                               
 MR. MESTAS pointed out other inconsistencies in SB 44 which                   
 seemed to be an invitation to a suit and not a correct                        
 statement of the bill.                                                        
                                                                               
 SENATOR JACKO questioned MR. BOND's statement of providing                    
 skiers with a copy of the statute, and SENATOR TAYLOR relayed                 
 his statement to MR. MESTAS.                                                  
                                                                               
 MR. MESTAS suggested posting the law rather than giving an                    
 incomplete statement of the law, but he objected to MR. BOND's                
 suggestion of making the statutes available.  He said there                   
 should be a correct statement of the risk, which he thought                   
 was MR. BOND's warning to skiers.  MR. MESTAS still contended                 
 the warning statement in the bill was inaccurate.                             
                                                                               
 SENATOR JACKO suggested skiers would need to bring along an                   
 attorney to interpret the statute, and the committee members                  
 agreed it was complex.                                                        
                                                                               
 SENATOR LITTLE said she was not in favor of providing a                       
 statute to the skiers, and she quoted SENATOR JACKO as to the                 
 confusion of such actions.                                                    
                                                                               
 SENATOR LITTLE moved to adopt an amendment to Amendment 18 to                 
 insert "visible" before "bare spots," on line 28, before                      
 "rocks," and before "stumps."  SENATOR TAYLOR discussed the                   
 drafting of her amendment with MR. FORD, and the amendment                    
 to Amendment 18 passed.  Without objections, so ordered.                      
                                                                               
 After some discussion, SENATOR TAYLOR announced Amendment 18                  
 had passed.  Without objections, so ordered.                                  
                                                                               
 SENATOR TAYLOR moved to adopt Amendment 19, MESTAS, page 11,                  
 lines 11 through 13, to delete the last line of Section                       
 05.45.100(a).  He explained MR. MESTAS' argument and asked for                
 MR. BOND's rebuttal.                                                          
                                                                               
 MR. BOND clarified the present legislation would encourage                    
 litigation between the skiers rather than the ski area, a                     
 collision would be an inherent risk of skiing, hence, no                      
 liability on the part of the ski area for such a collision.                   
 He reviewed the skier's responsibility as outlined on page 11                 
 in Section 05.45.100(b).  He reiterated his opposition to the                 
 amendment.                                                                    
                                                                               
 Number 335                                                                    
                                                                               
 After a vote, SENATOR TAYLOR announced Amendment 19 had passed                
 the Judiciary Committee, which deleted lines 11 through 13 on                 
 page 11.  Without objections, so ordered.                                     
                                                                               
 SENATOR TAYLOR moved to adopt Amendment 20, MESTAS, on page                   
 20, line 5, to insert "rebuttable" before the word                            
 "presumption."  Without objections, so ordered.                               
                                                                               
 SENATOR TAYLOR moved to adopt Amendment 21, MESTAS, on page                   
 12, line 31 and on page 13, line 1 through 12, which would                    
 delete the definition of "inherent danger and risk of skiing,"                
 and substitute another definition.  SENATOR TAYLOR asked MR.                  
 MESTAS to explain the definition change.                                      
                                                                               
 MR. MESTAS said his object in offering the amendment was to                   
 achieve simplicity as opposed to the present definition which                 
 he described as confusing and unworkable for any jury or                      
 judge.  He quoted the language from the Hiibschman decision                   
 as to the definition of inherent risk reflected in his                        
 language in the amendment.                                                    
                                                                               
 MR. BOND accused MR. MESTAS of being selective in quoting                     
 parts of the Hiibschman decision, and he reviewed parts in the                
 decision which listed the inherent risks.  He said the list                   
 was very important and had to be there.                                       
                                                                               
 Number 409                                                                    
                                                                               
 SENATOR LITTLE expressed confusion at MR. BOND's comments, and                
 she quoted some of his comments.                                              
                                                                               
 MR. MESTAS praised SENATOR LITTLE as defining the problem of                  
 previous hazards, and he suggested there should be consistency                
 with the previous provisions of the bill as to the ski area                   
 liability.                                                                    
                                                                               
 SENATOR TAYLOR announced the passage of Amendment 21.  Without                
 objections, so ordered.                                                       
                                                                               
 SENATOR TAYLOR discussed with GRETCHEN PENCE, Special                         
 Assistant for the Department of Public Safety, on page 5, line                
 8, the change of responsibility from the commissioner of                      
 Public Safety to the commissioner of natural resources.                       
                                                                               
 SENATOR LITTLE asked if there would be any changes in the                     
 fiscal note in relation to changes made by the committee.                     
                                                                               
 SENATOR TAYLOR concluded there would be no fiscal impact.                     
                                                                               
 SENATOR HALFORD moved to pass CS FOR SENATE BILL NO. 44(JUD),                 
 as amended, out of committee with individual recommendations.                 
 SENATOR DONLEY objected.  The roll was taken with the                         
 following result:  Senators Little and Halford voted "Yea" and                
 Senators Donley and Taylor voted "Nay."  The Chairman stated                  
 the motion to move the bill out of committee had failed.                      
                                                                               
 SENATOR TAYLOR introduced HB 120 (JURY LIST PREPARATION) and                  
 invited CHRIS CHRISTENSEN, Staff Counsel to the Judicial                      
 Branch, to testify.                                                           
                                                                               
 MR. CHRISTENSEN explained the court system was charged by AS                  
 20.920.050 with preparing a list of persons qualified for jury                
 service each year by March 15 from the list of Permanent Fund                 
 applicants, which must be submitted to the court system by the                
 Department of Revenue by January 15.  He said it had been                     
 determined jury service could be administered more efficiently                
 if the jury year corresponded to the calendar year, so the                    
 legislation would require the administrative director to                      
 prepare jury lists by November 30, from the Department of                     
 Revenue submitted no later than September 30.  He explained                   
 there was no fiscal note, and there might even be some                        
 administrative savings.                                                       
                                                                               
 SENATOR HALFORD moved to pass HOUSE BILL NO. 120 (JURY LIST                   
 PREPARATION) from committee with individual recommendations.                  
 Without objections, so ordered.                                               
                                                                               
 TAPE 93-35, SIDE A                                                            
 Number 001                                                                    
                                                                               
 SENATOR TAYLOR introduced CS FOR HOUSE BILL NO. 152(JUD)                      
 (JURISDICTION OF MAGISTRATES) and invited CHRIS CHRISTENSEN,                  
 Staff Counsel to the Judicial Branch, to testify.                             
                                                                               
 MR. CHRISTENSEN reviewed the duties of a District Court                       
 Magistrates and explained HB 152 proposed some changes to the                 
 magistrate's jurisdiction.  The first change would modify                     
 jurisdiction in respect to minor offenses which can't be a                    
 jail sentence, an excessive fine, or the loss of a valuable                   
 license.  A person committing a minor offense, also, does not                 
 have the right to a jury trial or a public defender.                          
                                                                               
 MR. CHRISTENSEN explained magistrates are allowed to hear                     
 minor offenses under Title 28 of the Criminal Rule, but not                   
 under those titles regulating Parks and Recreation and Fish                   
 and Game.  He said this legislation would allow a magistrate                  
 to hear any kind of minor offense where there is no jail                      
 sentence or excessive fine, regardless of where it is in the                  
 Alaska Statutes.  He explained this would transfer some of the                
 current criminal load from district judges, who have had their                
 jurisdiction increased substantially in the last 6 or 8 years.                
                                                                               
 MR. CHRISTENSEN said the second change would correct an                       
 oversight in court system legislation passed by the                           
 legislature back in 1990 in Criminal Rule 35.1 for post-                      
 conviction relief, and he explained how the rule would apply                  
 to magistrates.                                                               
                                                                               
 Number 050                                                                    
                                                                               
 SENATOR HALFORD moved to pass HB 152 (JURISDICTION OF                         
 MAGISTRATES) from committee with individual recommendations.                  
 Without objections, so ordered.                                               
                                                                               
 SENATOR TAYLOR returned HB 64 (ANTI-STALKING LAW) to Judiciary                
 Committee and asked for the pleasure of the committee.                        
                                                                               
 SENATOR LITTLE requested some information on a proposed                       
 amendment, and SENATOR DONLEY moved a Letter of Intent which                  
 reads:                                                                        
  "It is the intent of the legislature that, in                                
 prosecutions for the offense of stalking in the first degree                  
 in violation of AS 11.41.260 or staling in the second degree                  
 in violation of AS 11.41.270, the State of alaska must prove                  
 beyond a reasonable doubt that the victim was placed in actual                
 fear of death or physical injury by the defendant's course of                 
 conduct.  This gives the same meaning to the phrase                           
 "recklessly places another person in fear" as given to that                   
 phrase in the offense of assault in the third degree in                       
 violation of AS 11.41.220(a)(1) ("recklessly places another                   
 person in fear of imminent serious physical injury by means                   
 of a dangerous instrument").  This is also consistent with the                
 decision of the Alaska Court of Appeals in DeHart v. State,                 
 781 P.2d 989 (Alaska Ct. App. 1989)."                                         
                                                                               
 SENATOR TAYLOR asked MARGO KNUTH for her opinion of the letter                
 of intent, and she had no objections.                                         
                                                                               
 Number 070                                                                    
                                                                               
 SENATOR DONLEY moved to pass his Letter of Intent, as read.                   
 Without objections, so ordered.                                               
                                                                               
 SENATOR HALFORD moved to pass CS FOR HOUSE BILL NO. 64(FIN)                   
 as amended (ANTI-STALKING LAW) from committee with individual                 
 recommendations.  Without objections, so ordered.                             
                                                                               
 SENATOR TAYLOR returned SB 73 (LIABILITY OF DESIGN-                           
 CONSTRUCTION PROFESSIONALS) to committee and invited HENRY                    
 SPRINGER, on teleconference in Anchorage, to give testimony.                  
                                                                               
 MR. SPRINGER suggested the committee read the sponsor                         
 statement in the record that covers all of the issues very                    
 well, and he added a couple of suggestions.  He explained                     
 buildings were not built with a prescribed maintenance                        
 schedule, and it is critical to distinguish at what point the                 
 liability by the design and construction professionals                        
 business ends.  After a prolonged period, he explained it was                 
 impossible to assign 100% fault because of the activities                     
 beyond the control of the designers and builders.                             
                                                                               
 Number 124                                                                    
                                                                               
 MR. SPRINGER listed the states that have adopted the State of                 
 Repose.  In speaking for the Associated General Contractors,                  
 MR. SPRINGER said they supported the bill and requested the                   
 committee to consider 8 years instead of 10 years in keeping                  
 records.                                                                      
                                                                               
 Next to testify was DICK CATTANACH, a local contractor in                     
 Anchorage.                                                                    
                                                                               
 MR. CATTANACH spoke to the bill as being one of fairness, and                 
 he described the process he goes through in commercial                        
 construction in building for knowledgeable intelligent owners.                
 He reviewed the statute of limitations for the Internal                       
 Revenue Service as 3 years, 5 years for the State of Alaska                   
 for crimes against property, ethics violations in the                         
 Legislature is 5 years, crimes against people in the State of                 
 Alaska is 10 years, and no statute of limitations for murder -                
 or for construction.                                                          
                                                                               
 MR. CATTANACH described the impossible situation of trying to                 
 recreate the paper trail of records and participants and the                  
 difficulty in defending themselves after a period of time -                   
  especially for small Mom and Pop contractors in the State of                 
 Alaska.                                                                       
                                                                               
 Number 187                                                                    
                                                                               
 Last to testify from Anchorage was DOUG GREEN, an architect                   
 representing the Alaska Design Council and the American                       
 Institute of Architects.  He said he would also be testifying                 
 for two other architects, STEPHEN PETERS in Ketchikan and RICH                
 RITTER in Juneau.                                                             
                                                                               
 MR. GREEN said they were all in favor of SB 73 and have been                  
 working with it for quite few years.  He wanted to be sure the                
 committee understood how the Statue of Repose is different                    
 from the Statute of Limitation, and he gave some statistical                  
 information on claims against design professionals.                           
                                                                               
 Number 260                                                                    
                                                                               
 SENATOR TAYLOR welcomed SENATOR LEMAN and explained, at some                  
 point, the bill was going to have to support a cut off number,                
 as suggested by MR. SPRINGER.  He said it must be achieved to                 
 give some finality to the design and construction people, who                 
 are forever purchasing insurance tails and carrying around                    
 quantities of records.  He described the problems incurred by                 
 these professionals in defending themselves from a suit.                      
                                                                               
 SENATOR TAYLOR discussed with SENATOR LEMAN and SENATOR DONLEY                
 the provisions and limitations of the legislation, and SENATOR                
 LEMAN expressed his preference for 6 to 10 years in the                       
 Statute of Repose.                                                            
                                                                               
 Number 308                                                                    
                                                                               
 SENATOR DONLEY explained why he supported a 20 year proposal,                 
 and SENATOR LEMAN voiced his objections to anything over 10                   
 years.                                                                        
                                                                               
 There being no further business to come before the committee,                 
 the meeting was adjourned at 3:50 p.m.                                        
                                                                               
                                                                               

Document Name Date/Time Subjects