Legislature(2001 - 2002)

04/24/2002 01:44 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                    
                   SENATE JUDICIARY COMMITTEE                                                                                 
                         April 24, 2002                                                                                         
                            1:44 p.m.                                                                                           
MEMBERS PRESENT                                                                                                               
Senator Robin Taylor, Chair                                                                                                     
Senator Dave Donley, Vice Chair                                                                                                 
Senator John Cowdery                                                                                                            
MEMBERS ABSENT                                                                                                                
Senator Gene Therriault                                                                                                         
Senator Johnny Ellis                                                                                                            
COMMITTEE CALENDAR                                                                                                            
CS FOR HOUSE BILL NO. 281(JUD)                                                                                                  
"An  Act  relating  to civil  liability  for  providing  alcoholic                                                              
beverages to a person under 21 years  of age; and providing for an                                                              
effective date."                                                                                                                
     MOVED CSHB 281(JUD) OUT OF COMMITTEE                                                                                       
SENATE BILL NO. 309                                                                                                             
"An Act  relating to  actions to  quiet title  to, eject  a person                                                              
from, or  recover real property  or the  possession of it,  and to                                                              
acquisition of real property by adverse  possession; and providing                                                              
for an effective date."                                                                                                         
     HEARD AND HELD                                                                                                             
SENATE CS FOR HOUSE BILL NO. 405(JUD)                                                                                           
"An  Act  relating   to  the  prosecution  of   criminal  offenses                                                              
committed on  or against aircraft  owned or operated by  the state                                                              
or ferries  and other watercraft  owned or operated by  the state;                                                              
and providing for an effective date."                                                                                           
     MOVED SCS HB 405(JUD) OUT OF COMMITTEE                                                                                     
HOUSE BILL NO. 375 am                                                                                                           
"An Act  making corrective  amendments to  the Alaska Statutes  as                                                              
recommended  by the  revisor  of statutes;  and  providing for  an                                                              
effective date."                                                                                                                
     MOVED SCS HB 375(JUD) OUT OF COMMITTEE                                                                                     
SENATE BILL NO. 159                                                                                                             
"An Act  relating to retention elections  for judges of  the court                                                              
of appeals."                                                                                                                    
     SCHEDULED BUT NOT HEARD                                                                                                    
PREVIOUS COMMITTEE ACTION                                                                                                     
HB 281 - See Labor and Commerce minutes dated 3/21/02.                                                                          
SB 309 - See Labor and Commerce minutes dated 3/5/02 and 4/11/02.                                                               
HB 405 - See Transportation minutes dated 4/9/02.                                                                               
HB 375 - See Judiciary minutes dated 4/15/02.                                                                                   
SB 159 - See State Affairs minutes dated 5/05/01.                                                                               
WITNESS REGISTER                                                                                                              
Representative Kevin Meyers                                                                                                     
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Sponsor of HB 281                                                                                        
Cindy Cashen                                                                                                                    
Mothers Against Drunk Driving                                                                                                   
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Supports HB 281                                                                                          
Lindy Stoops                                                                                                                    
Youth in Action                                                                                                                 
No address provided                                                                                                             
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Supports HB 281                                                                                          
Michael Keggy                                                                                                                   
Youth in Action                                                                                                                 
No address provided                                                                                                             
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Supports HB 281                                                                                          
Anne Carpeneti                                                                                                                  
Assistant Attorney General                                                                                                      
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Answered questions about HB 281                                                                          
Pam Finley                                                                                                                      
Legislative Affairs Agency                                                                                                      
Legislative Legal and Research                                                                                                  
State Capitol                                                                                                                   
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Explained the provisions of HB 375                                                                       
Mr. Jon Tillinghast                                                                                                             
Simpson, Tillinghast, Sorenson and Longenbaugh                                                                                  
One Sealaska Plaza                                                                                                              
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Supports SB 309, particularly Section 1                                                                  
Mr. Russell Dick                                                                                                                
Natural Resource Manager                                                                                                        
Sealaska Corporation                                                                                                            
One Sealaska Plaza                                                                                                              
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Supports SB 309, particularly Section 1                                                                  
Mr. Jim Cantor                                                                                                                  
Assistant Attorney General                                                                                                      
Department of Law                                                                                                               
1031 W 4 Ave., Suite 200                                                                                                        
Anchorage, AK 99501-1994                                                                                                        
POSITION  STATEMENT:    Stated  that  DOTPF  opposes  SB  309  and                                                            
suggested including a 15 year statute of limitations                                                                            
ACTION NARRATIVE                                                                                                              
TAPE 02-21, SIDE A                                                                                                            
Number 001                                                                                                                      
CHAIRMAN  ROBIN  TAYLOR  called  the  Senate  Judiciary  Committee                                                            
meeting  to order  at 1:44  p.m.   Senators  Donley, Cowdery,  and                                                              
Chair Taylor were present. The committee took up HB 281.                                                                        
          HB 281-CIVIL LIABILITY FOR PROVIDING ALCOHOL                                                                      
REPRESENTATIVE  KEVIN MEYERS,  sponsor of  HB 281, explained  that                                                              
under HB 281 an adult who knowingly  furnishes alcohol to a person                                                              
under  age 21  may be  held  civilly liable  for  the results  and                                                              
damages. Under current  statute, only those with  a liquor license                                                              
can be held civilly liable. This  bill holds the general public to                                                              
a standard  similar to that for  licensees. The key word  in BHBHB
281 is "knowingly."  The intent of this bill is to  go after those                                                              
adults who  sit in parking  lots of liquor  stores on  weekends to                                                              
purchase  alcohol for minors  and get  paid by  the minors  or the                                                              
adult who willingly  purchases alcohol for minors. HB  281 will do                                                              
three  things: it  will deter  adults from  furnishing alcohol  to                                                            
minors;  it  will  reduce  underage  access  to  alcohol;  and  it                                                              
provides recourse  to victims' families. He told  members that the                                                              
main  reason  he is  going  forward  with  this legislation  is  a                                                              
tragedy that  occurred last  July in which  three teenagers  and a                                                              
police  officer   died.  He  said   the  bill  passed   the  House                                                              
unanimously. He asked committee members to support the bill.                                                                    
SENATOR DONLEY  pointed out the only  fiscal note was  prepared by                                                              
the House  Labor and Commerce  Committee and  asked if any  of the                                                              
departments have prepared a fiscal note for the bill.                                                                           
REPRESENTATIVE  MEYER said there  were no  other fiscal  notes and                                                              
that he does not anticipate any costs to the state.                                                                             
CHAIRMAN  TAYLOR commented  that he  has seen  about four or  five                                                              
bills  come  out  of the  House  Judiciary  Committee  that  would                                                              
provide immunity from negligent conduct  and the damages resulting                                                              
from  that conduct  for various  groups.  He asked  Representative                                                              
Meyer,  "You  realize that  these  are  criminal acts  that  we're                                                              
talking about?"                                                                                                                 
REPRESENTATIVE MEYER answered affirmatively.                                                                                    
CHAIRMAN  TAYLOR  asked if  there  is  some  reason why  the  same                                                              
standards  in the other  bills, i.e.  gross negligence,  reckless,                                                              
intentional, are not being used in HB 281.                                                                                      
REPRESENTATIVE MEYER  asked if Chairman Taylor was  asking why the                                                              
bill contains a knowingly standard versus criminal negligence.                                                                  
CHAIRMAN  TAYLOR said  HB 281  contains a  knowingly standard  but                                                              
only  applies to  private  persons,  however when  it  comes to  a                                                              
business, the standard is strict liability.                                                                                     
REPRESENTATIVE MEYER  said that is correct and  that the committee                                                              
wanted the  standard to  be higher for  the general public  versus                                                              
license holders. Committee  members had a lot  of discussion about                                                              
the issue of whether an adult would  be held liable if a minor got                                                              
a glass of champagne at a wedding  reception, for example. He said                                                              
the key word  is "knowingly," which  is hard to prove so  it would                                                              
have  to  be obvious  that  the  adult  knew  that the  minor  was                                                              
underage. He  said his intention is  to target adults who  wait in                                                              
parking lots  for the specific  purpose of purchasing  alcohol for                                                              
minors for a fee so the standard  is a little higher than it would                                                              
be for a package store.                                                                                                         
CHAIRMAN  TAYLOR said  that requiring  a  knowingly standard  will                                                              
make it difficult to prove. He then took public testimony.                                                                      
MS.  CINDY CASHEN,  representing  Mothers  Against Drunk  Driving,                                                              
said  there are  three  types of  people  who  provide alcohol  to                                                              
minors: chronic  alcoholics who purchase  alcohol in  exchange for                                                              
money  or alcohol  of their  own;  friends or  family; and  sexual                                                              
predators whose goal is to cause  impaired judgment in a teenager.                                                              
The last two are more common than  many realize. These people need                                                              
to  be aggressively  discouraged  through  laws  such as  HB  281.                                                              
Contributing  to  a minor  today  results  in  a small  fine  with                                                              
perhaps some jail time. HB 281 would  make selling to minors a big                                                              
deal. HB 281  sends the message to  youth that they are  cared for                                                              
and that the state  will pursue someone who was the  root cause of                                                              
a senseless tragedy.                                                                                                            
MS.  CASHEN  said  it  makes  no   sense  for  Alaska  to  prevent                                                              
restorative  justice  for  those  who  suffer  severe  and  tragic                                                              
consequences from  the result of those persons  who supply alcohol                                                              
to minors.  MADD believes  Alaskans want this  law and  needs this                                                              
law for our children if not for ourselves.                                                                                      
MS.  LINDY STOOPS,  representing  Youth  in Action  (a  MADD-based                                                              
program),  said many  people do  not realize  the consequences  of                                                              
providing alcohol to  people under the age of 21.  She believes it                                                              
is very  easy for minors  to get alcohol  in Juneau and  that this                                                              
bill  will make  people realize  that the  consequences of  buying                                                              
alcohol for minors are serious.                                                                                                 
MR. MICHAEL KEGGY, representing Youth  in Action, said he has seen                                                              
a lot of people who drink and drive  in Juneau. He has experienced                                                              
incidences with  alcohol, some in  his family, that  have affected                                                              
his life and the lives of those around him.                                                                                     
There  being  no  further testimony,  SENATOR  DONLEY  moved  CSHB
281(JUD) from committee with individual recommendations.                                                                        
CHAIRMAN  TAYLOR  announced  that without  objection,  the  motion                                                              
carried. He then noted the committee would take up HB 405.                                                                      
        HB 405-CRIMES ON OR AGAINST STATE VESSELS/PLANES                                                                    
CHAIRMAN  TAYLOR   informed  members  that  he   had  a  committee                                                              
substitute prepared as well as a  concurrent resolution to address                                                              
the title change.                                                                                                               
SENATOR DONLEY  asked Representative Meyer  if he approves  of the                                                              
committee substitute.                                                                                                           
REPRESENTATIVE MEYER said he does.                                                                                              
SENATOR DONLEY  moved to  adopt Version  C (Luckhaupt 4/16/02)  as                                                              
the Senate Judiciary committee substitute to HB 405.                                                                            
CHAIRMAN TAYLOR  announced that without  objection, Version  C was                                                              
before the committee.                                                                                                           
REPRESENTATIVE  MEYER, sponsor  of HB 405,  informed members  that                                                              
the only  change made  to Version C  is that state-owned  aircraft                                                              
was added. He  explained that HB 405 gives the  state jurisdiction                                                              
over state-owned  watercraft and aircraft traveling  outside state                                                              
waters. He introduced this legislation  because recently an Alaska                                                              
Superior Court  judge dismissed a  prosecution for  sexual assault                                                              
that  occurred  on a  state-owned  ferry  in Canadian  waters.  He                                                              
     Last  year a  young woman,  16 years  old, was  sexually                                                                   
     assaulted when  she was on the Alaska  ferry, Matanuska,                                                                   
     en route  from Seattle  to Ketchikan.  The ferry was  in                                                                   
     Canadian  waters  at  the  time   of  the  assault.  The                                                                   
     district  attorney in  Ketchikan presented  the case  to                                                                   
     the Grand  Jury there,  and the  Grand Jury returned  an                                                                   
     indictment for one count of  sexual assault in the first                                                                   
     degree  and one count  of sexual  assault in the  second                                                                   
     degree,   and  four  counts   of  misdemeanor   assault.                                                                   
     Unfortunately  the   court  found  that  there   was  no                                                                   
     statutory   authority  for  the   State  of  Alaska   to                                                                   
     prosecute  the  crime, even  though  the victim  was  an                                                                   
     Alaskan  and  it  happened on  an  Alaskan  owned  state                                                                   
     ferry.  Under federal  maritime law,  the United  States                                                                   
     government  has jurisdiction over  crimes that  occur on                                                                   
     U.S.  vessels in Canadian  waters but  the dismissal  by                                                                   
     the  state court  is  of concern  because  the crime  is                                                                   
     unlikely to be prosecuted by  the federal government and                                                                   
     certainly  not by the  Canadian government. The  federal                                                                   
     government doesn't  usually pursue smaller  crimes, even                                                                   
     though sexual  assault is not a smaller crimes,  and the                                                                   
     Canadian   government  has   very  little  interest   in                                                                   
     pursuing  a  crime that  occurred  on the  Alaska  owned                                                                   
     ferry  system to  a  U.S. citizen.  So,  I believe  it's                                                                   
     prudent that  we pass this  law that specifically  gives                                                                   
     the State  of Alaska the  power to prosecute  cases like                                                                   
     this that  occur on our  state-owned watercraft  and now                                                                   
     This  problem is  not going  to go  away, Mr.  Chairman.                                                                   
     Just  as recently  as in  December, we  had an  incident                                                                   
     where  a  passenger  attacked  two  crewmembers  with  a                                                                   
     broken  vodka  bottle  and caused  some  injury  to  the                                                                   
     crewmembers. The  passenger has since filed  a motion to                                                                   
     dismiss based  upon the dismissal of this  case with the                                                                   
     sexual assault.  Also this occurred  on the  state ferry                                                                   
     system in  Canadian waters. This  bill is a  simple bill                                                                   
     but it  provides a solution  to a very serious  problem.                                                                   
     The bottom  line, to summarize  what we're trying  to do                                                                   
     here, is that  if the Canadian government  does not want                                                                   
     to  prosecute  criminal  activity   on  our  state-owned                                                                   
     vessels,  and the  federal government  doesn't have  any                                                                   
     interest, then  the state should have the  right and the                                                                   
     option to  do so  and this bill  will allow that.  Thank                                                                   
SENATOR  DONLEY said  that  he supports  this  legislation but  is                                                              
flabbergasted because  he assumed  the federal government  did not                                                              
step in and prosecute that case.                                                                                                
MS.  ANNE CARPENETI,  representing  the Criminal  Division of  the                                                              
Department of  Law, said it is  her understanding that  the United                                                              
States Attorney's  Office is reviewing  the case. No  charges have                                                              
been filed yet, to her knowledge.                                                                                               
SENATOR DONLEY asked what the time frame is.                                                                                    
MS. CARPENETI  said she is not  familiar with the  federal statute                                                              
of limitations but she would find out.                                                                                          
SENATOR DONLEY said he thinks it's  dreadful that this happened on                                                              
a state ferry  and no federal decision about whether  to prosecute                                                              
has  been made,  given there  was  a grand  jury indictment  under                                                              
state law.                                                                                                                      
REPRESENTATIVE  MEYER  said he  has  written letters  to  Alaska's                                                              
congressional delegation about the matter.                                                                                      
MS. CARPENETI said  the federal statutes are different  and she is                                                              
not familiar with federal screening rules.                                                                                      
CHAIRMAN TAYLOR said  the bill was amended to  include state-owned                                                              
aircraft, but  he is concerned that  by limiting the bill  to only                                                              
those  aircraft  owned or  operated  by  the state,  the  question                                                              
remains open of who has jurisdiction  and who will prosecute on an                                                              
aircraft owned or  operated by the state flying  over Canadian air                                                              
space.   He said he would  like Alaska's long-arm  jurisdiction to                                                              
be as long as possible for the protection of Alaska's citizens.                                                                 
MS. CARPENETI  commented that the  bill was originally  drafted to                                                              
address a particular problem on a  state ferry. She explained that                                                              
traditionally,  criminal  jurisdiction  of  a state  is  based  on                                                              
territorial considerations.  The theory  behind HB 405 is  that an                                                              
Alaska ferry or  aircraft is "like a little piece  of Alaska going                                                              
through  Canadian   waters."  She  noted  if  the   state  expands                                                              
jurisdiction too far, it is liable  to be subject to a due process                                                              
claim  and dismissal  so the  theory  was to  address the  current                                                              
problem and  consider how  to handle  future situations  under due                                                              
process considerations to expand the program.                                                                                   
SENATOR  DONLEY  moved  SCS  CSHB  405(JUD)  from  committee  with                                                              
individual   recommendations,   as   well  as   its   accompanying                                                              
concurrent resolution.                                                                                                          
CHAIRMAN  TAYLOR  announced  that   without  objection,  SCS  CSHB
405(JUD) moved from committee with its accompanying resolution.                                                                 
SENATOR  DONLEY  asked Representative  Meyer  for  a copy  of  the                                                              
correspondence  he sent on  this subject and  then moved  that the                                                              
Senate Judiciary  Committee send a  letter to the  U.S. Attorney's                                                              
Office expressing its concern and  support for examining this case                                                              
in an expedited manner.                                                                                                         
CHAIRMAN TAYLOR  announced that with no objection,  Representative                                                              
Meyer would work with staff to draft such a letter.                                                                             
REPRESENTATIVE MEYER said he would be willing to do so.                                                                         
                  CSHB 375(JUD)-REVISOR'S BILL                                                                              
SENATOR DONLEY reminded members that  the committee held a hearing                                                              
on CSHB 375(JUD) the previous week.                                                                                             
MS. PAMELA FINLEY, Revisor of Statutes,  Alaska State Legislature,                                                              
said she  would like the committee  to focus on Section  2 because                                                              
it  is misleading  in that  it appears  to change  the statute  of                                                              
limitations.  She  explained  that  last year  a  floor  amendment                                                              
changed  the  statute  of  limitations  but did  not  change  this                                                              
related piece.  Section 2 is an  attempt to amend the  action that                                                              
was taken via the floor amendment.                                                                                              
MS.  FINLEY  said before  the  floor  amendment was  adopted,  the                                                              
statute of  limitations for  sexual abuse  and sexual assault  was                                                              
defined in  terms of  specific criminal  statutes. The  statute of                                                              
limitations  was   three  years  for  civil  actions.   The  floor                                                              
amendment  repealed and  reenacted it  so there  is no statute  of                                                              
limitations  for felony sexual  abuse or  sexual assault  and it's                                                              
not defined in  regard to any criminal statutes.  As a result, the                                                              
question  then becomes  what applies to  misdemeanor sexual  abuse                                                              
and sexual assault offenses. The  statute of limitations was three                                                              
years  but now  it  is  not covered  at  all. Because  no  special                                                              
statute of  limitations exists,  she understood  that to  mean the                                                              
standard  two-year tort  statute  of limitations  applies. If  the                                                              
crime  occurs  when  the  victim   is  a  minor,  the  statute  of                                                              
limitations does not start to run  until the victim hits majority.                                                              
Section 2 is a  subset of that so that if the  victim is under 16,                                                              
special  provisions  apply,  the  main  one  being  the  discovery                                                              
provision on page 2, lines 9-16.                                                                                                
MS.  FINLEY said  when this  statute was  originally written,  the                                                              
statute of  limitations was three  years. Then when it  changed to                                                              
two years  for misdemeanors and  no limitation for  felonies, this                                                              
was not amended.                                                                                                                
SENATOR DONLEY expressed  confusion and said it  didn't seem there                                                              
was any affirmative  act of the Legislature to  change the statute                                                              
of limitations to two years, it's  just that the issue was ignored                                                              
so that the existing presumption  of two years for everything else                                                              
then applied.                                                                                                                   
MS.  FINLEY said  the floor  amendment  did not  specify that  the                                                              
statute  of limitations  for misdemeanors  would become two  years                                                              
but that is what happened.                                                                                                      
SENATOR DONLEY said he believes a  strong case could be made to do                                                              
just the opposite  of what CSHB 375(JUD) does, and  that is to say                                                              
that the intent of the Legislature  was not to shorten the statute                                                              
of  limitations  for misdemeanor  sexual  abuse  offenses, but  to                                                              
leave it  as it was.  He noted the  revisor's bill  could actually                                                              
incorporate that as the correct intent of the Legislature.                                                                      
MS. FINLEY said to do that, the underlying  statute of limitations                                                              
would have to be  rewritten. She said she is reluctant  to do that                                                              
because the sponsor of that floor  amendment showed no inclination                                                              
to  do that  and the  bill had  been through  the House  Judiciary                                                              
SENATOR DONLEY asked who sponsored the floor amendment.                                                                         
MS. FINLEY  answered Representative  Berkowitz.  She said  she put                                                              
Section 2  in because she  felt it was her  duty to deal  with the                                                              
issue but Section 2 could be removed from the bill.                                                                             
SENATOR DONLEY said  he would prefer to take Section  2 out of the                                                              
CHAIRMAN TAYLOR  said that  taking it out  of the bill  will leave                                                              
the statute  of limitations at three  years. However, it  could be                                                              
argued that it could be two years because it is a gray area.                                                                    
MS.  FINLEY said  she  is not  sure  what a  court  would do.  She                                                              
assumed if the victim is not 16 or  under, the court would have to                                                              
conclude  that the  statute  of limitations  is  two  years for  a                                                              
misdemeanor  sexual assault  because the  issue is basically  when                                                              
the clock starts running.                                                                                                       
CHAIRMAN TAYLOR asked if this is for civil purposes.                                                                            
MS. FINLEY  said it is. She said  she would be perfectly  happy to                                                              
remove Section  2 but  hopes someone will  deal with  the question                                                              
because it is problematic.                                                                                                      
SENATOR  DONLEY  asked  Ms. Finley  to  give  him  a copy  of  the                                                              
original   floor   amendment  and   information   describing   the                                                              
inconsistency so that he could work on it.                                                                                      
MS. FINLEY agreed.                                                                                                              
SENATOR DONLEY moved to delete Section  2 of CSHB 375(JUD) because                                                              
he  does not  support shortening  the statute  of limitations  for                                                              
these sorts of crimes.                                                                                                          
CHAIRMAN  TAYLOR  announced that  with  no objection,  the  motion                                                              
carried.  He then thanked  Ms. Finley  for her  great work  as she                                                              
does a high quality job that often goes unnoticed.                                                                              
SENATOR  DONLEY agreed  and said  Ms. Finley  is one  of the  best                                                              
attorneys in the Division of Legal Services.                                                                                    
There being  no further questions,  SENATOR DONLEY moved  SCS CSHB
275(JUD) from committee with individual recommendations.                                                                        
CHAIRMAN  TAYLOR  announced  that  with  no  objection,  SCS  CSHB
375(JUD) will  move to the next  committee of referral as  soon as                                                              
it is prepared.                                                                                                                 
                    SB 309-ADVERSE POSSESSION                                                                               
SENATOR  THERRIAULT said  he agreed  to  introduce SB  309 but  it                                                              
pertains to an area of statute that  he has not dealt with before.                                                              
He noted  the committee discussion  to this point has  raised some                                                              
interesting public  policy calls. He said  he is not an  expert in                                                              
this area but others are here to testify on the legislation.                                                                    
MR. RUSSELL DICK,  resource manager for the  Sealaska Corporation,                                                              
introduced  Mr.  John  Tillinghast,  legal  counsel  for  Sealaska                                                              
Corporation  and  said  they  would  address  any  technical/legal                                                              
issues with this bill.                                                                                                          
MR. DICK  said that Sealaska is  very supportive of SB  309, which                                                              
will  restrict  claims  of  adverse   possession  against  private                                                              
property. Sealaska  Corporation is the regional  corporation under                                                              
the Alaska  Native Claims Settlement  Act and the  largest private                                                              
property   landowner   in   Southeast    Alaska.   Alaska   Native                                                              
Corporations  are  the largest  private  landowners  in Alaska  in                                                              
general. Sealaska has talked with  other regional corporations who                                                              
indicated their support for SB 309 as well.                                                                                     
MR. DICK explained that lands conveyed  to the Native corporations                                                              
serve  two   fundamental  purposes:   to  settle  Alaska   Natives                                                              
aboriginal claims  and to meet  the social, cultural  and economic                                                              
needs of Natives,  hence these lands are the foundation  of Native                                                              
people's  existence.  Congress  imposed  a prohibition of  adverse                                                              
possession  claims   as  long  as  these  lands   remained  in  an                                                              
undeveloped  state. Sealaska  felt that  was probably good  policy                                                              
when  ANCSA was  first created,  but  many did  not recognize  how                                                              
expansive  these land  bases  would become  in  the future.  ANCSA                                                              
didn't consider the  degree of development on these  lands nor did                                                              
it  consider the  burden  that it  places  on  having to  actively                                                              
police  these  large,  remote  landholdings.  Sealaska  alone  has                                                              
290,000  acres  of  land  throughout   Southeast  Alaska  with  an                                                              
entitlement  expected  to  reach  upwards of  350,000  acres.  The                                                              
burden of  having to police those  lands doesn't serve  any public                                                              
purpose  and  seems  to  Sealaska  to be  an  economic  waste.  In                                                              
addition, Sealaska  has a real estate department  to purchase non-                                                              
ANCSA lands. Those  lands do not maintain the  same prohibition of                                                              
adverse  possession claims  so  Sealaska must  deal  with that  as                                                              
MR. DICK  said that  Alaska has always  seemed to respect  private                                                              
property  rights,  as  there  is so  little  private  property  in                                                              
Alaska:  the doctrine  of  adverse possession  seems  inconsistent                                                              
with  that  recognition.  The  state has  made  itself  immune  to                                                              
adverse  possession claims  due  to the  expansive  nature of  its                                                              
lands and  the economic  burden associated  with having  to police                                                              
them. Sealaska, as  a private property owner, is  asking for those                                                              
same protections.                                                                                                               
CHAIRMAN TAYLOR  asked if any  state allows adverse  possession of                                                              
state land.                                                                                                                     
MR.  JON TILLINGHAST  said to  the  best of  his knowledge,  every                                                              
state prohibits its  land from being taken by  adverse possession,                                                              
as does the federal government.                                                                                                 
CHAIRMAN TAYLOR  commented, "And that  is because every  state has                                                              
either the Fifth Amendment that the  federal government has or has                                                              
an amendment  identical to  it that the  state cannot take  land -                                                              
the king cannot  take land from its citizens without  a payment of                                                              
just compensation. Right?"                                                                                                      
MR. TILLINGHAST said he understood  the question to be whether any                                                              
state  allows land  to be taken  from  the king.  They do not.  He                                                              
thought the  policy justification for  that is that the  state and                                                              
federal government own  large parcels of remote land  and it would                                                              
be  too much  of  a  burden on  the  public  fist to  require  the                                                              
government to patrol its own lands.                                                                                             
CHAIRMAN TAYLOR said  it is also part of the  Fifth Amendment that                                                              
the king is not allowed to take by  adverse possession either. The                                                              
king must take land by eminent domain  and pay full, fair and true                                                              
value and  use a  formal process.  He asked  why the state  should                                                              
afford the same privilege to a private landowner.                                                                               
MR. TILLINGHAST responded:                                                                                                      
     Two answers. First, we are also  firm believers in state                                                                   
     and private land  being treated equally and  if you were                                                                   
     going  to  elevate  the one  over  another,  frankly  my                                                                   
     ideology  suggests that  you elevate  private land  over                                                                   
     public but we're not asking  for that, we're just asking                                                                   
     for  equal treatment.  My  understanding  is that  state                                                                   
     does   take  land   from  private   people  by   adverse                                                                   
CHAIRMAN TAYLOR  said he  just learned that  the other day  and he                                                              
does not believe the state or a city  or borough should be able to                                                              
"take private land by road grader." He explained:                                                                               
     They're taking  a ten-foot wide easement and  every year                                                                   
     when they grade the road they  move a little further out                                                                   
     in the guy's yard. The next  thing you know the street's                                                                   
     25  feet  wide.  They never  purchased  it.  They  never                                                                   
     condemned it and took it. They  never paid a dime for it                                                                   
     and here the  city or the state is enforcing  some right                                                                   
     of adverse  possession through  prescription, some  sort                                                                   
     of prescriptive  right, because 'well we've  used it all                                                                   
     of  these years  so  now it's  ours.'  I  think that  is                                                                   
     totally backwards and we should not tolerate it.                                                                           
MR. TILLINGHAST replied  that during the earlier  hearings on this                                                              
bill,  the   Alaska  Department   of  Transportation   and  Public                                                              
Facilities (DOTPF)  opposed it because  it wanted to  preserve its                                                              
right to  take people's  private property  without paying  for it.                                                              
Sealaska was shocked.                                                                                                           
CHAIRMAN TAYLOR said  he wanted that on the record  because he was                                                              
given that information  yesterday and he too was  stunned. That is                                                              
a  major shift  in  real property  law  in this  state  and he  is                                                              
thinking about drafting legislation to address the problem.                                                                     
MR.  TILLINGHAST remarked  that SB  309 will  prevent anyone  from                                                              
doing that.  He said  the only justification  for the  doctrine of                                                              
adverse possession  in Alaska  Supreme Court  cases is  the theory                                                              
that if  you have  an idle  capitalist doing  nothing with  vacant                                                              
land, and  an industrious  worker is  willing to  squat on  it and                                                              
grow corn, it is  good public policy to let the  squatter take the                                                              
land. He  said in  his mind, it  is none  of the state's  business                                                              
what a private  property owner does with his property.  He said he                                                              
does not believe any other state  has done what SB 309 proposes to                                                              
do but  Alaska has always  been proud that  it does not  do things                                                              
the same way as other states.                                                                                                   
MR.  TILLINGHAST asserted  that ANCSA  corporations have  enormous                                                              
holdings in remote places and the  cost of policing those lands to                                                              
make sure that squatters are not  living on them is huge. It might                                                              
be a cost  worth bearing if it  served a valid public  purpose but                                                              
it does  not. Squatters  should not be  rewarded by the  state for                                                              
living  on private  land. He  said if  the state  wants to send  a                                                              
clear signal that  it respects private property  rights, it should                                                              
enact SB 309.                                                                                                                   
CHAIRMAN TAYLOR recounted  a case he had that went  to the Supreme                                                              
Court but  was dismissed.  He represented  a couple  that owned  a                                                              
small house in  Wrangell for over 50 years. The  couple had loaned                                                              
money to their  nephew to buy an adjoining piece  of property. The                                                              
state came along and widened Evergreen  Ave., which they lived on.                                                              
The state  did a survey  for right-of-way  purposes and  found the                                                              
lines  for all of  the lots  on the  street to  be incorrect.  The                                                              
nephew's  lot was a  pie shaped  piece that  took in the  couple's                                                              
sidewalk, garden and a corner of  their house. The neighbors had a                                                              
new survey  done of  the whole neighborhood  and "each  guy handed                                                              
the  other  guy a  quit  claim  deed"  so that  they  owned  their                                                              
original pieces of property, except the nephew.                                                                                 
TAPE 02-21, SIDE B                                                                                                              
CHAIRMAN TAYLOR then explained the  nephew insisted the couple pay                                                              
him for the  corner of their property  at close to the  amount the                                                              
couple had  loaned him.  If SB  309 had  been enacted, the  couple                                                              
would  have  to  pay  to  the  nephew,  from  the  day  they  took                                                              
possession,  full  market  value  at the  current  appraisal  plus                                                              
interest plus  the cost of an  appraisal. In addition,  the couple                                                              
would have to pay in a short time  frame otherwise ownership would                                                              
revert to  the nephew. Chairman  Taylor said  he was able  to find                                                              
U.S. Forest  Service aerial photographs  of the land in  1954 and,                                                              
coupled with reliable testimony,  was able to establish by adverse                                                              
possession that the  couple had occupied the area  of the lot with                                                              
the garden.                                                                                                                     
MR. TILLINGHAST  said Chairman Taylor interpreted  the legislation                                                              
correctly  and drew  a  distinction that  the  bill itself  draws.                                                              
Section 1 is  the "anti-squatter act," which is aimed  at the bad-                                                              
faith guy who puts up a shack on  land with no legitimate claim or                                                              
title. Section  2 involves  those situations  in which  both sides                                                              
are  proceeding with  some good  faith, or  certainly the  adverse                                                              
possessor is. The possessor has some  claim of title but something                                                              
went wrong,  such as  an erroneous  survey. The  bill proposes  to                                                              
keep  the  doctrine  of  adverse  possession  in  those  instances                                                              
because that's where  the doctrine does have a  legitimate current                                                              
use. He  suggested in a situation  where the adverse  possessor is                                                              
making a  claim under  claim of title  in which  the couple  had a                                                              
deed  but  the survey  was  wrong,  the  allocation of  rents  and                                                              
payments ought  to be  discretionary with the  court. He  noted in                                                              
the case  Chairman Taylor  described, it would  be unfair  to make                                                              
the couple pay.                                                                                                                 
CHAIRMAN  TAYLOR  commented that  most  folks in  Wrangell  leased                                                              
before  the 1970s and  everything  was done on  contract of  sale,                                                              
which was  not recorded. He noted  that the couple  he represented                                                              
would not have been able to comply  with some of the provisions of                                                              
Section  2(a)(1),  in  which  the possessor  would  need  "(C)  an                                                              
instrument under  which the possessor  claimed title  was recorded                                                              
at the time the possessor's claim of title began;".                                                                             
MR.  TILLINGHAST  said the  intent  of SB  309  is  to make  major                                                              
changes  to  the squatter  provision  in  Section  1. It  was  not                                                              
Sealaska's intent  to unduly complicate  or change  the situations                                                              
Chairman  Taylor is talking  about. He  said it  may well  be that                                                              
some of the items  in Sections 2 and 3 should  be removed and that                                                              
it is healthy to  take a critical look at the  details of Sections                                                              
2 and  3 because  that has not  happened yet.  To this  point, the                                                              
debate has  been about Section  1 with  the state arguing  that it                                                              
still wants to take people's land for highways.                                                                                 
CHAIRMAN TAYLOR  said he is willing  to work with  Mr. Tillinghast                                                              
on Sections  2 and  3. He noted  he has some  sympathy for  a vast                                                              
landowner who must patrol for squatters,  but Congress has already                                                              
given protection on undeveloped land.  He said he owns undeveloped                                                              
remote acreage and  gets to that property once every  year to make                                                              
sure no  one has put a  cabin on it.  He believes that is  part of                                                              
the responsibilities  of a diligent  landowner. He said he  is not                                                              
ready to rewrite  the property laws on adverse  possession yet but                                                              
he is  willing to  look at  the other  provision. Chairman  Taylor                                                              
noted that  he has hired  Mike Wright,  an attorney,  as committee                                                              
staff  until  the  end  of  the session  so  Mr.  Wright  will  be                                                              
available to provide additional effort in this regard.                                                                          
SENATOR THERRIAULT  commented that  his wife had  a pro  bono case                                                              
that  was similar  to the  one Chairman  Taylor related  so he  is                                                              
aware that  there are  instances in  which the adverse  possession                                                              
doctrine has proved useful.                                                                                                     
CHAIRMAN TAYLOR asked Jim Cantor to testify.                                                                                    
MR. JIM  CANTOR, Assistant  Attorney General,  Department  of Law,                                                              
Transportation  Section,  informed members  he  was testifying  on                                                              
behalf of the  Department of Transportation and  Public Facilities                                                              
CHAIRMAN  TAYLOR noted,  for the  record, that  he discussed  this                                                              
legislation for an  hour the previous day with  Assistant Attorney                                                              
General Bill Cummings.                                                                                                          
MR.  CANTOR informed  members  that  DOTPF opposes  SB  309 as  it                                                              
raises  two areas  of  concern. The  first  is with  accommodation                                                              
between neighbors, which is more  of a problem in rural areas. For                                                              
example, a  maintenance crew may show  up to deal with  a drainage                                                              
problem and  work with the landowner  to come up with  a solution.                                                              
The solution  may inadvertently  or intentionally  involve  a pipe                                                              
that  crosses  into  another  piece  of  property.  Sometimes  the                                                              
adjoining landowner  has given explicit or tacit  approval that is                                                              
not recorded. Time then passes, the  adjoining landowner has moved                                                              
on  and the  new landowner  looks  at SB  309  and sees  a way  to                                                              
collect money  on what  was actually  done permissively.  He noted                                                              
there have  been many  situations  where crews  in the field  work                                                              
with  landowners and  things are  done  permissively. The  current                                                              
statute of limitations  is 10 years, which would  be changed by SB
309, so that a  cause of action could exist 30  years later, after                                                              
all memory  of the arrangement is  gone.  He noted  this situation                                                              
primarily  arises  with  drainage   issues  and  driveway  linkage                                                              
In regard to Chairman Taylor's comment  about the movement of road                                                              
right-of-ways, MR.  CANTOR pointed out  that gravel roads  tend to                                                              
drift as they  are maintained. DOTPF now has a  program that local                                                              
governments have pushed  to put asphalt on gravel  roads and those                                                              
roads  are eventually  turned over  to the  local governments.  He                                                              
said the  initial objection  to that  program  was that all  roads                                                              
would  have to  be surveyed.  The communities'  response was  that                                                              
they knew  the roads were  there so they  encouraged the  state to                                                              
put  the asphalt  on them.  Essentially the  communities did  that                                                              
knowing  adverse possession  claims  could be  made  on the  areas                                                              
where the road had drifted.                                                                                                     
MR. CANTOR  noted that SB  309 has no  statute of limitations.  He                                                              
recounted that  when he was  in law school,  he bought a  house in                                                              
Upstate New  York. Before he signed  the papers, the  lawyers told                                                              
him the  title had a  flaw, that being  that a group  of investors                                                              
bought  a large  part of  the parcel  during the  Civil War.  They                                                              
disappeared  and no heirs  came forward.  They assumed  the matter                                                              
was cleared up  by adverse possession by the 1870s.  He signed the                                                              
papers but, under SB 309, he would  have had to worry about record                                                              
interests back to  the Civil War. Those interests  could have been                                                              
resurrected.  He  suggested,  on  behalf of  DOTPF,  changing  the                                                              
statute  of limitations  to 15  years  to give  property owners  a                                                              
little more certainty as to who owns the land.                                                                                  
CHAIRMAN  TAYLOR asked  Mr. Cantor  to forward  to his office  the                                                              
legal theories and precedent cases  upon which the state bases its                                                              
arguments that  it, through inverse condemnation,  takes land over                                                              
time because a road grader drifts  to the outside corner of a road                                                              
each time it is  graded so that after 15 years  the state owns the                                                              
property  that a private  property  owner is paying  taxes  on. He                                                              
said Mr. Cummings said some of the  judges in this state allow the                                                              
state to acquire private property in that way.                                                                                  
MR. CANTOR said he was not versed  in the names of those cases but                                                              
would look  into them and that the  theory used in those  cases is                                                              
the statute of limitations on inverse condemnation.                                                                             
CHAIRMAN TAYLOR  said he is aware  that is a positive way  for the                                                              
state  to acquire  land at  no cost  but he  does not  feel it  is                                                              
MR.  TILLINGHAST  said  he  realizes SB  309  has  raised  complex                                                              
issues, particularly  Sections 2 and  3. He asked  Chairman Taylor                                                              
if the committee  would be comfortable allowing Section  1 to move                                                              
out of committee  so that at  least the private landowners  of the                                                              
state can stop spending money chasing after squatters.                                                                          
CHAIRMAN TAYLOR replied:                                                                                                        
     I'm concerned about some of  the ways in which the state                                                                   
     itself  is using  that. We  do have  properties we  have                                                                   
     sold under the state sales.  We have now retaken some of                                                                   
     those.  There's adverse possession  claims within  those                                                                   
     too. I  just have  a general  concern about that  entire                                                                   
     body of law at this point, Jon,  and I'd like to instead                                                                   
     hold the  bill, work with you,  and work with  the state                                                                   
     to  see  if   we  can  come  up  with   some  additional                                                                   
     alternatives. A whole batch  of this West was settled by                                                                   
     squatters, most  of Oklahoma - they call  their football                                                                   
     team the  "Sooners" because  they got there  sooner than                                                                   
     they were  supposed to and  they squatted on  that land.                                                                   
     We used  to allow  squatters in this  state - we  called                                                                   
     them  homesteaders. Go  out and  squat on  any piece  of                                                                   
     land you can  and make a house out of it,  make a cabin,                                                                   
     clear a  little bit of land  - if you live  there, we'll                                                                   
     give you 160  acres. That's what the  federal government                                                                   
     did so I  think there's a whole body of  law and reasons                                                                   
     why we have  something like the adverse  possession laws                                                                   
     and  I really  want to  think  about this  one a  little                                                                   
     further  before we go  forward with  it. Thank you  very                                                                   
     much Jon, I appreciate it.                                                                                                 
SENATOR THERRIAULT said that now  that he understands the problems                                                              
associated  with  Sections  2 and  3,  he  would be  agreeable  to                                                              
dropping those  sections, if that  is the Chair's desire.  He said                                                              
knowing  that Chairman  Taylor is  a strong  proponent of  putting                                                              
large  amounts  of remote  land  in  private ownership,  he  hopes                                                              
Chairman Taylor can see the benefit of Section 1.                                                                               
CHAIRMAN  TAYLOR said he  intends to  work on  Section 1.  He then                                                              
noted  SB 159  was also  on today's  calendar  but Senator  Donley                                                              
asked that it not be taken up at  this time. He then adjourned the                                                              
meeting at 2:56 p.m.                                                                                                            

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