Legislature(1999 - 2000)
04/12/1999 01:40 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE April 12, 1999 1:40 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Rick Halford, Vice-Chairman Senator Dave Donley Senator Johnny Ellis MEMBERS ABSENT Senator John Torgerson COMMITTEE CALENDAR SENATE BILL NO. 110 "An Act relating to liability involving certain property acquired by a governmental entity; and providing for an effective date." -HEARD AND HELD SENATE BILL NO. 114 "An Act relating to impersonating a public servant." -HEARD AND HELD SENATE JOINT RESOLUTION NO. 14 Proposing amendments to the Constitution of the State of Alaska relating to the election and the duties of the attorney general. -HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION SB 110 - No previous action to report. SB 114 - See Judiciary minutes dated 3-29-99. SJR 14 - See State Affairs minutes dated 3/18/99 and 4/7/99. WITNESS REGISTER Senator Gary Wilken State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Presented SB 110 Ms. Beth Hagevig Staff to Senator Gary Wilken State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Presented information on SB 110 Senator Jerry Ward State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Presented SJR 14 Mr. Virgil Norton PO Box 141796 Anchorage, AK 99514 POSITION STATEMENT: Offered testimony on SB 110 Mr. Breck Tostevin, Assistant Attorney General Department of Law 103 W. 4th Ave. Anchorage, AK 99501 POSITION STATEMENT: Offered testimony on SB 110 Mr. Paul Costello PO Box 71267 Fairbanks, AK 99707 POSITION STATEMENT: Offered testimony on SB 110 Mr. Frank Mielke, Chief Right-of-Way Agent Department of Transportation 6860 Glacier Highway Juneau, AK 99801-7898 POSITION STATEMENT: Suggested amending SB 110 ACTION NARRATIVE TAPE 99-26, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:40 and announced SB 110 would be the first order of business. SB 110-PROPERTY ACQUIRED BY GOVT. ENTITY SENATOR GARY WILKEN, sponsor of SB 110, explained the bill deals with a municipality's responsibility for contaminated property it receives as a result of tax delinquency. SENATOR WILKEN said he was asked to bring the bill forward on behalf of the Fairbanks North Star Borough (FNSB) which is faced with liability for "dirty property." SENATOR WILKEN stated federal law exempts state and local government entities from liability for cleaning up contaminated property when the property has been acquired by escheat, tax delinquency, or foreclosure. He explained that tax foreclosure is an obligatory action for a municipality faced with tax delinquent property. Due to strict liability, municipalities are concerned they may be held liable for preexisting contamination of foreclosed lands and the significant environmental remediation costs those properties incur. SENATOR WILKEN stated SB 110 will change state law to mirror federal law, and allow municipalities, in certain instances, to hold title to contaminated land without liability for clean up. Number 061 SENATOR HALFORD asked how the term "government entity" is defined. He suggested the term be changed to "state governmental entity" so the federal government would not be able to walk away from any liability. SENATOR WILKEN said he is open to any change that improves the bill, and stated it is not his intent to let the federal government off the hook for contaminated federal lands. CHAIRMAN TAYLOR asked if the federal government exempted themselves from liability in these cases. Number 110 MR. VIRGIL NORTON, testifying from Kenai, stated he does not oppose the intent of SB 110. He said there is a lot of work that could be done to strengthen the "innocent landowner" affirmative defense against the current strict liability standard for property owners. MR. NORTON said, in the case of dirty property, someone is going to have to pay to clean it up. He suggested that the Environmental Protection Agency (EPA) is a more appropriate agency to clean up contaminated sites. MR. NORTON asked if SB 110 will result in different treatment for governmental and commercial property owners. MR. NORTON concluded that SB 110 will have far-reaching implications for all property owners in Alaska. He believes when a land owner who comes into possession of contaminated property acts responsibly, the state should assist him or her in finding the person responsible for the release of toxins into the environment, and hold that person responsible. CHAIRMAN TAYLOR asked MR. NORTON if he has any specific amendments to the bill. MR. NORTON said he had "a whole table full." CHAIRMAN TAYLOR asked him to forward his suggestions to the committee. Number 308 MR. NORTON said he would do that, and also come to Juneau and help with SB 110. MR. PAUL COSTELLO, from Fairbanks, indicated that Senator Wilken's testimony accurately represented the concerns of the FNSB. He said the FNSB hopes to extend liability protection to tax foreclosed land acquired, so that it will not be responsible for the preexisting condition of this land. MR. COSTELLO said the FNSB is currently in possession of 14 pieces of contaminated property with an estimated liability of 1.5 million dollars. He urged passage of SB 110. Number 352 CHAIRMAN TAYLOR asked MR. BRECK TOSTEVIN, the representative from the Department of Law testifying from Anchorage, if the federal government had exempted itself from liability. MR. TOSTEVIN said the federal government held itself liable; the exemption from liability exists only for state and local governments when property is acquired through tax delinquency. CHAIRMAN TAYLOR asked if the federal government is liable for existing federal lands such as military bases. MR. TOSTEVIN replied that is correct. The federal government waived its sovereign immunity and assumed liability for military land. Number 372 MR. FRANK MIELKE, chief right-of-way agent for the Department of Transportation (DOT), proposed that the Department would like the committee to broaden Subsection 5 of the bill to include any land acquired by the state. He recounted laws other than the Statehood Act under which the state has acquired land, including the Alaska Native Claims Settlement Act, the Omnibus Act, and School Lands Act, as well as other donated lands. He asked that the state not be held to the strict liability standard for those lands. SENATOR HALFORD said he has no problem granting immunity to a municipality for land that is involuntarily transferred to it. However, the strict liability standard was created by state law and to exempt the state from it would be unfair to the private sector. Number 410 MR. MIEKLE said that strict liability for the state denotes ultimate liability, meaning the state ends up paying for the entire cleanup even when the state can find fault with the previous owner. SENATOR HALFORD asked why the state would not go after the guilty party for damages. MR. MIELKE said it is difficult to find the responsible party. Additionally, sometimes these parties, when found, are "judgment proof." MR. MIELKE concluded that sometimes "the cost of pursuing all of the various people to get the ultimate liability on somebody else, was more than the cost of the cleanup." SENATOR HALFORD asked Mr. Mielke what effect the exemption he requested would have. MR. MIELKE replied, "We probably would have gone to DEC . . . or to EPA and said 'This is a cleanup problem, please clean it up. Instead, we were stuck with the cleanup on it.'" SENATOR HALFORD replied, "So you're asking us for a change that would stop the state from cleaning up the mess?" He said that is what other property owners are faced with, because the state decided the cleanup was so important it had to be done. Number 443 MR. MIELKE said DOT explored the option of taking the cleanup fee out of the condemnation proceeds, but the Alaska Superior Court denied that. SENATOR HALFORD said he does not disagree with MR. MIELKE's point; it is simply contrary to the principle of strict liability. CHAIRMAN TAYLOR asked MR. TOSTEVIN if he could comment on some points made by MR. NORTON. MR. TOSTEVIN informed the committee that MR. NORTON represents a client currently in litigation with the state. Though unable to address MR. NORTON's comments directly, MR. TOSTEVIN spoke generally about the statute and explained that the law casts a wide net of liability for contaminated property which encompasses everyone who has obtained an economic benefit from the land in question. MR. TOSTEVIN said this law was purposefully drawn broadly in order to find all responsible parties and relieve the state from the burden of cleanup costs. Number 495 SENATOR HALFORD repeated his suggestion to add the word "state" before "government" on page 2, line 2. SJR 14-ELECTION OF ATTORNEY GENERAL SENATOR JERRY WARD, sponsor of SJR 14, explained that the proposed work draft contains a prohibition against a person elected Attorney General from becoming Governor or Lieutenant Governor until at least one term intervenes. He stated he supports the change. Number 516 SENATOR HALFORD moved the adoption of the work draft. Without objection, the work draft was adopted. SENATOR DONLEY asked if the election of the Attorney General would occur at the same time the Governor and Lieutenant Governor are elected. SENATOR WARD replied yes, they would be elected independently (not as a part of a ticket) at this time. SENATOR HALFORD noted that under SJR 14, the only qualifications for a candidate seeking the office of Attorney General is that they be 30 years old. He asked if there was a residency requirement for a person to be elected Attorney General. He asked what the residency requirement for the office of Governor is. CHAIRMAN TAYLOR said the requirement is seven years. SENATOR HALFORD asked if the sponsor would object to a seven year residency requirement. SENATOR WARD said he would not. CHAIRMAN TAYLOR asked if the sponsor would object to a requirement that the person actually be an attorney. SENATOR WARD remarked that would preclude him or SENATOR HALFORD from holding the position, but he would not object. Number 540 SENATOR HALFORD moved conceptual Amendment 1: that the bill contain the same residency requirement for an elected Attorney General as is currently required to hold the office of Governor, and that an Attorney General be an attorney who has passed the Bar exam, licenced for at least five years in Alaska. Without objection, conceptual Amendment 1 was adopted. CHAIRMAN TAYLOR stated the bill would be brought up again. SB 114-IMPERSONATE POLICE/EMERGENCY VEHICLE Number 571 SENATOR DONLEY moved Amendment 1 by Senator Ellis. The text of the amendment reads: Page 1, line 10, following "vehicle": Insert "Owned or used by a federal, state or municipal fire, law enforcement, or emergency services agency or public or private ambulance service" Page 1, following line 10: Insert a new bill section to read: * Sec. 2. AS 11.56.830 is amended by adding a new subsection to read: (e)In a prosecution under (a)(2) of this section, it is an affirmative defense that the person operating the propelled vehicle was a member of a community patrol organized by or in cooperation with a municipality, and the propelled vehicle did not have (1) lights or sirens that may only be used by a police or emergency vehicle; (2) the words "police," "fire," or "emergency" affixed or displayed on the vehicle. Without objection, Amendment 1 was adopted. SENATOR DONLEY explained the amendment adds an affirmative defense to the bill. CHAIRMAN TAYLOR indicated there is other work being done on SB 114 and so it will be brought up again. With nothing further to come before the committee, CHAIRMAN TAYLOR adjourned the meeting at 2:26 p.m.