Legislature(2003 - 2004)

04/25/2003 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         April 25, 2003                                                                                         
                           1:10 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Ralph Seekins, Chair                                                                                                    
Senator Scott Ogan, Vice Chair                                                                                                  
Senator Gene Therriault                                                                                                         
Senator Johnny Ellis                                                                                                            
Senator Hollis French                                                                                                           
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 8                                                                                                               
"An Act relating to tampering with public records."                                                                             
     HEARD AND HELD                                                                                                             
SENATE BILL NO. 55                                                                                                              
"An Act relating to tampering with public records."                                                                             
     HEARD AND HELD                                                                                                             
SENATE BILL NO. 161                                                                                                             
"An  Act  relating  to  certain  civil  actions  brought  by  the                                                               
attorney general under monopoly  and restraint of trade statutes;                                                               
relating to the  award of damages in actions  brought under those                                                               
statutes; and providing for an effective date."                                                                                 
     MOVED SB 161 OUT OF COMMITTEE                                                                                              
SENATE BILL NO. 171                                                                                                             
"An Act  relating to certain suits  and claims by members  of the                                                               
military  services   or  regarding  acts  or   omissions  of  the                                                               
organized militia;  relating to liability arising  out of certain                                                               
search  and rescue,  civil defense,  homeland security,  and fire                                                               
management  and firefighting  activities;  and  providing for  an                                                               
effective date."                                                                                                                
     HEARD AND HELD                                                                                                             
SENATE BILL NO. 98                                                                                                              
"An Act  relating to civil  liability for guest passengers  on an                                                               
aircraft or watercraft; and providing for an effective date."                                                                   
     MOVED CSSB 98(TRA) OUT OF COMMITTEE                                                                                        
PREVIOUS ACTION                                                                                                               
SB 8 - See HESS minutes dated 3/5/03, 3/10/03 and 3/24/03.                                                                      
SB 55 - See HESS minutes dated 3/5/03, 3/10/03 and 3/24/03.                                                                     
SB 161 - No previous action to record.                                                                                          
SB 171 - No previous action to record.                                                                                          
SB 98 - See Transportation minutes dated 4/8/03 and Judiciary                                                                   
          minutes dated 4/23/03                                                                                                 
WITNESS REGISTER                                                                                                              
Ms. Karen McCarthy                                                                                                              
Staff to Senator Bunde                                                                                                          
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Commented on SB 98                                                                                        
Mr. Richard Benavidas                                                                                                           
Staff to Senator Davis                                                                                                          
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Commented on SB 8                                                                                        
Senator Fred Dyson                                                                                                              
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Sponsor of SB 55                                                                                          
Mr. Ed Sniffen, Assistant Attorney General                                                                                      
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Commented on SB 161                                                                                      
Ms. Gail Voigtlander, Assistant Attorney General                                                                                
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT: Commented on SB 171                                                                                       
Commissioner Bill Tandeske                                                                                                      
Department of Public Safety                                                                                                     
PO Box 111200                                                                                                                   
Juneau, AK  99811-1200                                                                                                          
POSITION STATEMENT:  Commented on SB 171                                                                                      
Mr. Jeff Jahnke, State Forester                                                                                                 
Division of Forestry                                                                                                            
Department of Natural Resources                                                                                                 
400 Willoughby Ave.                                                                                                             
Juneau, AK  99801-1724                                                                                                          
POSITION STATEMENT:  Supported SB 171                                                                                         
ACTION NARRATIVE                                                                                                              
TAPE 03-30, SIDE A                                                                                                            
CHAIR  RALPH   SEEKINS  called  the  Senate   Judiciary  Standing                                                             
Committee meeting  to order  at 1:10  p.m. Senators  Ogan, French                                                               
and  Chair Seekins  were present.  Senator Therriault  arrived as                                                               
the meeting was in progress.                                                                                                    
          SB  98-LIABILITY: PLANE AND BOAT PASSENGERS                                                                       
CHAIR RALPH SEEKINS  announced SB 98 to be  up for consideration.                                                             
He noted that  Section 2 deals with the  definition of commercial                                                               
purposes and asked if that means not for hire.                                                                                  
MS.  KAREN MCCARTHY,  staff to  Senator  Bunde, sponsor,  replied                                                               
yes, given federal strictures with  regard to the cost of flights                                                               
and non-commercial boat owners.                                                                                                 
CHAIR SEEKINS asked if there  is a definition in statute anywhere                                                               
of commercial purposes or are they relying on the FAA.                                                                          
MS. MCCARTHY replied  that she didn't know if there  is any other                                                               
definition in statute.                                                                                                          
SENATOR OGAN said page 2, line 30 of the bill says,                                                                             
     The owner  of the  watercraft is  liable for  injury or                                                                    
     damage  caused by  negligent operation  of the  owner's                                                                    
     watercraft where  the negligence consists  of violation                                                                    
     of  state statute  or  neglecting  to observe  ordinary                                                                    
He was concerned that someone  could argue that bootlegging was a                                                               
commercial purpose and, therefore, is not illegal.                                                                              
SENATOR  FRENCH  responded  that   that  would  be  either  gross                                                               
negligence or  reckless or  intentional misconduct  under section                                                               
CHAIR  SEEKINS said  he didn't  think it  was the  intent of  the                                                               
sponsor  to allow  wrong doers  to be  covered by  limitations of                                                               
1:15 - 1:16 p.m. - at ease                                                                                                      
SENATOR OGAN moved CSSB 98(TRA),  version \H, from committee with                                                               
individual recommendations. There was no  objection and it was so                                                               
              SB   8-TAMPERING WITH PUBLIC RECORDS                                                                          
CHAIR SEEKINS announced SB 8 to be up for consideration.                                                                        
MR.  RICHARD BENAVIDAS,  staff to  Senator  Davis, sponsor,  said                                                               
that tampering  with records involving  a child under the  age of                                                               
18 in  the care of the  state can be very  grave. Accurate record                                                               
keeping  is important  in light  of the  case of  a five-year-old                                                               
Miami girl  who disappeared  while in  the care  of the  State of                                                               
Florida. SB 8  is designed as a disincentive for  those who would                                                               
falsify those kinds of records.                                                                                                 
SENATOR OGAN asked whom they are targeting with this bill.                                                                      
SENATOR  DAVIS  replied  that  the case  in  Florida  raised  the                                                               
awareness of  this issue, but  tampering with records  has always                                                               
been around.  She worked in  the Department of Health  and Social                                                               
Services as  a social  worker and  a nurse for  17 years  and has                                                               
seen times recordings  were not being made because  of heavy case                                                               
loads. After a long time, you  forget some things that need to go                                                               
in the  records. It's not  always intentional when  people tamper                                                               
with  records. In  Alaska, there  is  no recourse  and this  bill                                                               
makes it a felony to do that.                                                                                                   
SENATOR OGAN  said he  doesn't want to  snare people  who weren't                                                               
SENATOR FRENCH  said that  AS 56.820 says  you have  to knowingly                                                               
make a  false entry  or alter  a public  record. This  bill adds,                                                               
"who are in the care of the  state" to children under 18 - foster                                                               
children, etc.                                                                                                                  
SENATOR DAVIS explained that she  was targeting all children that                                                               
fall under Title 47.                                                                                                            
CHAIR SEEKINS said he thought  the first section means that there                                                               
had  to be  an intent  to benefit  from the  alteration or  for a                                                               
child under the age of 18, etc.                                                                                                 
SENATOR THERRIAULT arrived at 1:22 p.m.                                                                                         
MR.  BENAVIDAS   responded  why  should  someone   get  the  same                                                               
treatment for  falsifying a child's  record and  possibly causing                                                               
harm,  as  someone  that  put  down  that  he  graduated  from  a                                                               
university when he didn't.                                                                                                      
SENATOR OGAN said  he didn't know how a child  could be harmed by                                                               
tampering with records  and wondered if there should  be a felony                                                               
charge if a kid doesn't get hurt.                                                                                               
SENATOR  DAVIS  responded  that  a  child does  not  have  to  be                                                               
physically harmed in order to be  hurt. If a caseworker says they                                                               
have visited a home and that  the child is fine and they actually                                                               
never went  to the home, things  might not be going  well. "A kid                                                               
could  very well  come  up dead....  We have  from  time to  time                                                               
[heard]  where children  have died  in  foster care  or in  other                                                               
treatment homes...."                                                                                                            
She  informed them  that  the Office  of  Children's Services  is                                                               
under  scrutiny  because  they  haven't been  able  to  pass  the                                                               
federal audit.  "I think  sometimes other  things need  to happen                                                               
other than just a reprimand or saying you can't do that."                                                                       
SENATOR  OGAN  agreed with  her  that  some situations  are  very                                                               
dangerous  and that  there is  a high  burnout rate  for workers.                                                               
However, if you're  not a very good record  keeper, and something                                                               
bad happens  to the  kid and you're  accused of  something, "It's                                                               
just  additional pressure  on that  group of  professionals... to                                                               
all of a sudden be a felon."                                                                                                    
He asked  if that  might be  a deterrent  to getting  and keeping                                                               
good people,  because they don't  want to be liable  for criminal                                                               
activity if they make a mistake.                                                                                                
SENATOR  DAVIS replied  that she  didn't  think it  would be  and                                                               
filing of  information is not  the problem. "We're  talking about                                                               
falsifying records, not poor filing."                                                                                           
SENATOR ELLIS arrived at 1:26 p.m.                                                                                              
SENATOR ELLIS asked  if a child at school is  considered to be in                                                               
the care and custody of the state.                                                                                              
SENATOR DAVIS  replied no,  it doesn't have  anything to  do with                                                               
keeping school records.                                                                                                         
SENATOR FRENCH asked if this could  be applied to a foster parent                                                               
who  is  not  the  person  who   is  charged  by  law  to  gather                                                               
SENATOR DAVIS  replied that there  are already laws on  the books                                                               
that would cover foster parents  who were falsifying pay vouchers                                                               
or whatever.                                                                                                                    
SENATOR  THERRIAULT said  he feels  there  was a  better ways  to                                                               
draft AS 8.15(a)(1) and (2).                                                                                                    
SENATOR DAVIS responded  that she asked the drafter  if there was                                                               
some other  way to do it,  but he felt  it was the best  way. She                                                               
offered to let the Department of Law look at it.                                                                                
SENATOR FRENCH asked  if she heard any rumors to  the effect that                                                               
this is currently a problem here in the state.                                                                                  
SENATOR  DAVIS replied  she  has heard  some  horror stories  and                                                               
emphasized, "There are cases where this is needed."                                                                             
1:39 - 1:40 p.m. - at ease                                                                                                      
CHAIR  SEEKINS noted  that both  SB 8  and SB  55 amend  the same                                                               
section  of statute  and said  that  they would  take up  Senator                                                               
Dyson's bill. He said they would hold SB 8.                                                                                     
              SB  55-TAMPERING WITH PUBLIC RECORDS                                                                          
CHAIR SEEKINS announced SB 55 to be up for consideration.                                                                       
SENATOR DYSON, sponsor  of SB 55, said that he  and Senator Davis                                                               
often  think along  the same  lines. His  bill doesn't  limit the                                                               
same issues to just children.  He thought deliberately falsifying                                                               
records of adults could be a  real problem, as well. Instances of                                                               
rape  are of  particular  concern  to him.  He  reported that  35                                                               
percent to  40 percent of the  rapes that go on  in North America                                                               
happen in prisons and are  same sex. However, Alaska's Department                                                               
of  Corrections has  had very  little of  that. "If  that's true,                                                               
it's  something we  can be  really proud  of. I  can tell  you in                                                               
other jurisdictions it's a horrendous problem..."                                                                               
He  wants  to make  sure  that  if  we  have a  less  enlightened                                                               
Department of  Corrections, the message is  clear that falsifying                                                               
records and  protecting the  administration and  bureaucracy from                                                               
having to deal with being irresponsible is a problem.                                                                           
He also  has received  calls from adult  children of  parents who                                                               
are in a  care facility for one reason or  another and are really                                                               
concerned about  how their  parents are  being treated.  "Some of                                                               
it's  ugly. I  want it  clear with  those vulnerable  adults that                                                               
somebody that's  covering up  the abuse of  those adults  is also                                                               
subject to the penalties."                                                                                                      
The difference between his bill and  Senator Davis' is that SB 55                                                               
allows  for  the state  to  go  after  people who  knowingly  and                                                               
deliberately change  the records to  cover up or  protect abusing                                                               
adults. Language  on line  9 makes  it clear  that it's  with the                                                               
intent  to conceal  a fact  material to  an investigation  or the                                                               
provision of services.                                                                                                          
CHAIR SEEKINS said that SB  55 deals with children's proceedings,                                                               
delinquent minors,  child protection or protection  of vulnerable                                                               
SENATOR  ELLIS asked  him  to elaborate  on  how organized  crime                                                               
could  be involved  and if  there is  some suspicion  that it  is                                                               
involved in the Alaska Child Protection System.                                                                                 
SENATOR  DYSON replied  that he  doesn't  know of  anyone who  is                                                               
allowing organized crime to go  on involving vulnerable adults or                                                               
children, but  he said  his first foster  son was  prostituted to                                                               
Asian flight crews  at the Captain Cook and the  Westwood where a                                                               
significant ring of that was going  on. A small town in Southeast                                                               
also had  a large  ring of pedophiles  that were  providing young                                                               
children to  tour ship people.  He said that was  organized crime                                                               
and it  was with the  permission of the  parents and there  was a                                                               
distinct monetary advantage  to the parents. He  has no knowledge                                                               
that any state officials knew of it or were covering it up.                                                                     
1:50 - 1:54 p.m. - at ease                                                                                                      
CHAIR SEEKINS said he wanted to roll  SB 55 into SB 8 and to have                                                               
Senator  French,  who was  concerned  that  a child  wouldn't  be                                                               
committing  a  felony  if  they  falsified  their  age  on  their                                                               
driver's license,  work together  with the  sponsors on  a single                                                               
CHAIR SEEKINS held SB 55 in committee.                                                                                          
         SB 161-MONOPOLY AND RESTRAINT OF TRADE ACTIONS                                                                     
CHAIR SEEKINS announced SB 161 to be up for consideration.                                                                      
MR.  ED SNIFFEN,  Assistant Attorney  General, said  that SB  161                                                               
amends  the  existing  anti-trust  laws that  give  the  attorney                                                               
general  the  right to  recover  indirect  damages on  behalf  of                                                               
consumers who otherwise do not have such a remedy.                                                                              
Under current  federal and  state anti-trust law,  if there  is a                                                               
conspiracy between  two suppliers of  a product, that  results in                                                               
that  product's price  being overly  inflated and  that price  is                                                               
passed on to an importer, and  maybe a distributor and finally to                                                               
us  as the  consumer.  The consumer  right now  has  no right  of                                                               
action to  sue the upstream violator.  That rule of law  was laid                                                               
out  in a  1977 U.S.  Supreme  Court case  called Illinois  Brick                                                               
Company v. State of Illinois. The  court thought it would be very                                                               
difficult to  determine how  much profit  was actually  passed on                                                               
and it would  be cumbersome to litigate. Only  the importer could                                                               
sue,  because  they were  the  ones  that purchased  the  product                                                               
directly from the anti-trust violators.                                                                                         
In that  same case, the  Supreme Court  said states were  free to                                                               
enact their  own anti-trust laws  to provide for this  remedy and                                                               
30 states have  already done that. Alaska hasn't  and that's what                                                               
SB 161 does.                                                                                                                    
He  said that  these are  not  just theoretical  things that  are                                                               
happening; they are  happening within the state and  have cost us                                                               
a lot of money.                                                                                                                 
     We are involved in  multi-state litigation all the time                                                                    
     along with  other states to sue  large manufacturers of                                                                    
     products, pharmaceutical products,  contact lenses, and                                                                    
     a variety of different consumer products.                                                                                  
     In one  case two  years ago  called the  Vitamins Case,                                                                    
     there  were  two  vitamin manufacturers  who  conspired                                                                    
     with each other to keep  the price of vitamins high. We                                                                    
     joined  in with  30 other  states in  that suit  and we                                                                    
     reached a  settlement with the vitamin  companies along                                                                    
     with the  other states.  States who had  these Illinois                                                                    
     Brick repealer statutes  got $1 million a  piece in the                                                                    
     settlement.  States who  did not  have the  statute got                                                                    
     zero. We  argued with the settlement  committee in that                                                                    
     case that  we had other  laws that would entitle  us to                                                                    
     recovery and we in fact  were able to get $100,000 that                                                                    
     we distributed  to relevant organizations. But,  had we                                                                    
     had a  law like  this in  place, we  would have  seen a                                                                    
     much larger  recovery. We're involved in  several cases                                                                    
     now that involve these same kinds of claims.                                                                               
SENATOR THERRIAULT asked for examples of other cases.                                                                           
MR. SNIFFEN  responded that two  others come to  him immediately.                                                               
One  involves  a  conspiracy  among   a  bunch  of  contact  lens                                                               
manufacturers to  artificially keep  the price high.  Another one                                                               
is the  Nine West case that  involved the sales of  women's shoes                                                               
that  resulted  in a  lot  of  money  going  to the  states  with                                                               
Illinois  Brick repealer  statutes and  less money  going to  the                                                               
states without  it. He  just resolved  a case  recently involving                                                               
compact   music   discs  where   a   lot   of  distributors   and                                                               
manufacturers of  music set minimum  prices on CDs. They  did not                                                               
present  claims on  behalf  of injured  consumers  in that  case,                                                               
because they didn't  have this kind of  statute. Currently, there                                                               
are three other pharmaceutical cases  involving conspiracies up a                                                               
chain to  artificially inflate the price  of certain prescription                                                               
drugs. Another case  they decided not to get  involved in because                                                               
they  didn't   have  this  law   involves  sorbates,   which  are                                                               
preservatives that are  used in all kinds of foods.  "As a whole,                                                               
we could make big claims on  behalf of consumers to recover those                                                               
types of damages."                                                                                                              
TAPE 03-30, SIDE B                                                                                                            
2:01 p.m.                                                                                                                     
SENATOR  OGAN wanted  to  know  how our  state  laws would  reach                                                               
across oceans to reach suppliers  like OPEC that conspires to set                                                               
oil prices.                                                                                                                     
MR. SNIFFEN replied  that is a good question, but  in most cases,                                                               
the  issues don't  involve foreign  suppliers.  Under state  law,                                                               
ordinary consumers  don't have the  right to challenge  the price                                                               
of gas, for  example, if the conspiracy to keep  the price of gas                                                               
high occurred  upstream. However,  it's not  unheard of  for some                                                               
states  to  get  together  and  bring  causative  action  against                                                               
foreign suppliers of materials.                                                                                                 
SENATOR OGAN asked how they reach foreign countries.                                                                            
MR. SNIFFEN replied:                                                                                                            
     There  is   a  way   states  can   reach  international                                                                    
     boundaries  through  a  lot of  mechanisms....  We  can                                                                    
     extend  our  jurisdiction  to   companies  who  have  a                                                                    
     presence in  Alaska and are doing  business here. There                                                                    
     are international rules that allow us to do that.                                                                          
He said it  probably wouldn't happen very often  in Alaska unless                                                               
we join  with other  states that are  considering doing  the same                                                               
thing, but it can be done.                                                                                                      
CHAIR  SEEKINS asked  if having  subsidiaries in  the U.S.  makes                                                               
that possible.                                                                                                                  
MR. SNIFFEN answered that is correct.                                                                                           
SENATOR THERRIAULT said he doesn't  think it would work with OPEC                                                               
because they  conspire to manipulate  supply to  influence price;                                                               
they don't set the price.                                                                                                       
CHAIR  SEEKINS  wanted to  clarify  that  the retailer  bears  no                                                               
responsibility in this law, just  the persons who are involved in                                                               
the conspiracy.                                                                                                                 
MR.  SNIFFEN  replied  that  is correct.  The  retailer  is  just                                                               
passing prices on.                                                                                                              
SENATOR  THERRIAULT  asked  why  language  on  page  2  would  be                                                               
MR.  SNIFFEN replied  that  is a  good question  and  there is  a                                                               
second portion  to the bill  that removes from the  current anti-                                                               
trust that  you have to find  conduct on behalf of  an anti-trust                                                               
violator is willful before you  can recover treble damages. Right                                                               
now, a  federal law does  not have  that requirement and  you can                                                               
recover three  times your  damages; state law  has a  much higher                                                               
SENATOR  THERRIAULT  asked how  they  would  go about  proving  a                                                               
conspiracy that is not willful.                                                                                                 
MR.  SNIFFEN replied  conspiracy  is almost  always willful,  but                                                               
there  are also  times when  you can  violate the  anti-trust law                                                               
negligently  and  recklessly, like  in  the  current Bristol  Bay                                                               
SENATOR  THERRIAULT  noted  that  the bill  would  not  drop  the                                                               
finding down to knowingly, it would just drop the willingly.                                                                    
MR. SNIFFEN responded that would bring  this law in line with how                                                               
federal anti-trust laws are structured.                                                                                         
SENATOR OGAN asked how this law  would change the way the Bristol                                                               
Bay case is litigated.                                                                                                          
MR.  SNIFFEN said  if this  law had  been in  place, it  probably                                                               
wouldn't have  changed a thing.  In that case, all  the fishermen                                                               
had direct damages;  they purchased or sold fish  directly to the                                                               
processors and  there wasn't an intermediary  that prevented them                                                               
from bringing their claims.                                                                                                     
SENATOR OGAN  asked if this  would allow the attorney  general to                                                               
bring a case against a retailer.                                                                                                
MR. SNIFFEN replied the retailer  that is passing on the inflated                                                               
price from  upstream anti-trust behavior  would not  be affected.                                                               
In  this  instance,  the attorney  general  might  represent  the                                                               
thousands of consumers who might  have bought that product at $10                                                               
when it should have been $5.                                                                                                    
SENATOR  THERRIAULT commented  the fiscal  note doesn't  indicate                                                               
how much this will cost the state.                                                                                              
MR.  SNIFFEN explained  that the  fiscal  note is  indeterminate,                                                               
because the  department doesn't  know how  much revenue  the bill                                                               
will generate. "It's  unlikely to cost the state  any money; it's                                                               
more likely to increase revenue,  because we're involved in these                                                               
cases anyway..."                                                                                                                
SENATOR THERRIAULT  motioned to pass  SB 161 from  committee with                                                               
individual  recommendations  and  attached  indeterminate  fiscal                                                               
note. There was no objection and it was so ordered.                                                                             
          SB 171-SUITS & CLAIMS: MILITARY/FIRE/DEFENSE                                                                      
CHAIR SEEKINS announced SB 171 to be up for consideration.                                                                      
MS. GAIL VOIGTLANDER, Assistant  Attorney General, said this bill                                                               
covers  four  areas  of governmental  emergency  operations.  The                                                               
first  area  is search  and  rescue.  The Alaska  State  Troopers                                                               
conduct about 400 of them each  year and they decide when and how                                                               
to initiate  a search or  rescue and  often call on  the National                                                               
Guard and community resources to  assist. This bill would provide                                                               
immunity from  tort lawsuits for  state and local  government and                                                               
their employees  when they participate  in the  rescue activities                                                               
(Section 2).                                                                                                                    
The next topic  is about intra-military court  claims in response                                                               
to an  Alaska Supreme Court case,  Himsel v. State 2001.  In that                                                               
case the  court departed from  the generally  held intra-military                                                               
tort immunity  known as the  "Feres Doctrine" that  provides that                                                               
if you are  a member of a military service,  you cannot sue other                                                               
members of the military service for  torts if you are injured. As                                                               
an employee, your  remedies are: if you are  acting under federal                                                               
orders, getting federal workers'  compensation and other benefits                                                               
and, if you are under  state orders, getting the state's workers'                                                               
compensation benefits.                                                                                                          
Most military operations  in Alaska are with  people carrying out                                                               
federal orders. This says you  cannot sue in addition to workers'                                                               
compensation  remedies; it  does not  change your  entitlement to                                                               
those  benefits  nor  does  it  change  the  amount  of  benefits                                                               
(Sections 4 -6).                                                                                                                
Section 3 provides that tort  claims are barred against the state                                                               
for acts of the organized  militia (the Alaska National Guard and                                                               
the  state militia)  unless  the governor  calls  them out  under                                                               
Title 26.050.70.                                                                                                                
The  third  topic of  the  bill  is  civil defense  and  homeland                                                               
security.  Civil defense  is already  provided for  in Title  26.                                                               
Since the  events of  9-11, the civil  defense roll  has expanded                                                               
into homeland  security issues, as  well. The  federal government                                                               
has  expanded  and thrown  back  to  the state  governments  more                                                               
activity in  this area than  they used  to have. This  portion of                                                               
the  bill  seeks to  continue  an  immunity  that is  already  in                                                               
statute  for  civil  defense  activities and  extend  it  to  the                                                               
homeland security  area. It bars  tort claims  against government                                                               
employees  and  authorizes  volunteers  if  a  homeland  security                                                               
worker sustains  damages. It does  not affect entitlement  to the                                                               
extent of homeland security benefits.                                                                                           
The second portion of that area  is that it bars third party tort                                                               
claims  against government  employees  and authorized  volunteers                                                               
for  damages unless  the person  who is  injured can  demonstrate                                                               
malice  or   reckless  indifference   by  clear   and  convincing                                                               
evidence. In existing Title 26 there  is an exception that has to                                                               
do  with one  area  where  immunity is  not  extended. This  bill                                                               
tracks  that  in terms  of  incorporating  exclusion where  third                                                               
party claims  can be asserted  in the  area of civil  defense and                                                               
homeland security (sections 7-11).                                                                                              
Finally,  the  fourth  topic  is  that  of  fire  management  and                                                               
firefighting activities.  Two statutory  sections are  amended to                                                               
bar tort claims by third  parties against state, local government                                                               
or  other firefighting  groups and  their employees.  This is  in                                                               
response to two  Alaska Supreme Court cases that  were decided in                                                               
2001,  Angaboognuk  and Bartek  cases,  which  arose out  of  the                                                               
Miller's  Reach  Fire.  The court  diverged  from  ninth  circuit                                                               
precedent  for other  western states  that  provide immunity  for                                                               
firefighting  activities either  through  common  law or  through                                                               
specific statutes. This portion of  the bill would have Alaska in                                                               
keeping with  the other western  states that have wild  land fire                                                               
exposure.  After-the-fact litigation  is costly  to the  state to                                                               
defend and costly to the  state's resources to have people review                                                               
every step  that is  taken and  decision that  is made  during an                                                               
emergency  operation.  This bill  would  immunize  the state  and                                                               
local   government  employees   that  participate   in  emergency                                                               
activities (sections 12-13).                                                                                                    
SENATOR  THERRIAULT   asked  if  Section  9   relates  to  giving                                                               
MS. VOIGTLANDER  said yes, adding  there are a number  of federal                                                               
benefits that  would provide remedies  to people if  they receive                                                               
vaccinations because of homeland security concerns.                                                                             
SENATOR OGAN  asked if there is  a case law record  of precedents                                                               
that the court deviated from.                                                                                                   
MS.  VOIGTLANDER  replied  there  are ninth  circuit  cases  that                                                               
affected  fires  out  of  Oregon,  California  and  Wyoming  that                                                               
immunized those activities. There are  state statutes or case law                                                               
in the  jurisdictions of  California, Kansas,  Oklahoma, Montana,                                                               
Idaho, Delaware, Florida, Indiana, New York and Kentucky.                                                                       
SENATOR OGAN  asked if  the Alaska Supreme  Court is  supposed to                                                               
interpret based  on Alaska's constitution and  statutes. He asked                                                               
if there are  any cases in Alaska that have  been ruled as having                                                               
sovereign immunity and that precedence was departed from.                                                                       
MS. VOIGTLANDER  replied there simply  has not been that  type of                                                               
litigation  in the  state  until the  Miller's  Reach fire.  It's                                                               
possible that people  were under the impression  that there could                                                               
not be  such a  claim made  against the  state for  fire fighting                                                               
activity.  In  the  Agnaboognuk case  the  Alaska  Supreme  Court                                                               
addressed  that and  simply looked  at the  existing statute,  AS                                                               
9.50.250, on  waiver of immunity and  said they didn't see  it in                                                               
that statute.                                                                                                                   
     This bill  would put  into statute  that the  state had                                                                    
     not waived its  immunity for those types  of claims and                                                                    
     so the case law would  then be overruled by the statute                                                                    
     as an annunciation  of a public policy in  the state of                                                                    
SENATOR  FRENCH  asked if  the  TSA  employees  who work  at  the                                                               
airport are considered state homeland security workers.                                                                         
MS. VOIGTLANDER said  she understands that all  TSA employees are                                                               
employed through the Federal Homeland Security Office.                                                                          
COMMISSIONER BILL TANDESKE, Department  of Public Safety, said he                                                               
thinks it is  appropriate that his department  is responsible for                                                               
search and rescue,  but there are a lot of  variables involved in                                                               
an effort in a state this  size. They have an obligation to those                                                               
folks for their safety.                                                                                                         
     I think it's  important that we make  search and rescue                                                                    
     decisions based  on sound  search principles  and doing                                                                    
     the right  thing for the  right reasons.... One  of the                                                                    
     guiding principles of any  law enforcement operation is                                                                    
     don't let a bad situation  get worse. If you're missing                                                                    
     one, don't end up missing three.                                                                                           
COMMISSIONER TANDESKE  said there  are a lot  of notices  of snow                                                               
mobilers over due and volunteers  find the vast majority of them.                                                               
He questioned the  validity of the families that  lost loved ones                                                               
using litigation  as a way to  find answers about why  the system                                                               
didn't work.                                                                                                                    
SENATOR  OGAN asked  how many  planes  are listed  as missing  in                                                               
COMMISSIONER TANDESKE replied that he didn't know for sure.                                                                     
SENATOR OGAN said he had heard around  40 to 50. He asked if they                                                               
are in any litigation now over search and rescue issues.                                                                        
COMMISSIONER TANDESKE replied  that he didn't know,  since he had                                                               
been with the department just three months.                                                                                     
MS. VOIGTLANDER informed members that  the Denali Highway case is                                                               
on appeal to the supreme court.                                                                                                 
SENATOR OGAN  asked if  there had  been some  disciplinary action                                                               
associated  with that  case. He  asked  what assurances  Alaskans                                                               
have that  these things will  be taken care  of if they  are held                                                               
harmless in such situations.                                                                                                    
COMMISSIONER TANDESKE clarified  that he was aware  of the appeal                                                               
on  the Denali  case; he  thought the  question pertained  to new                                                               
litigation. Without  getting into  specifics, he said  that there                                                               
was  disciplinary action  in  that  case and  he  would hold  his                                                               
employees accountable just as they are in any situation.                                                                        
CHAIR SEEKINS asked  how this bill would have  affected the Olrum                                                               
case specifically.                                                                                                              
COMMISSIONER  TANDESKE   replied  there  is  a   fair  amount  of                                                               
misinformation about  that case and  he isn't sure how  to answer                                                               
since he is not an attorney.                                                                                                    
CHAIR SEEKINS recalled that temperatures  were around -50 degrees                                                               
when that happened.                                                                                                             
COMMISSIONER TANDESKE replied that is correct.                                                                                  
CHAIR SEEKINS asked  if the troopers would normally  send out the                                                               
snow machines to find someone at -50 temperatures.                                                                              
COMMISSIONER  TANDESKE said  not necessarily  on a  snow machine,                                                               
but they would take all  circumstances into account before making                                                               
a decision.                                                                                                                     
2:45 p.m.                                                                                                                     
CHAIR SEEKINS asked if this bill  would hold him harmless when he                                                               
makes a judgment call about a search or rescue.                                                                                 
COMMISSIONER TANDESKE replied  he would have to refer  to a legal                                                               
mind to answer  that question, but this bill does  not change the                                                               
statutory  responsibility  for  search   and  rescue  within  his                                                               
CHAIR SEEKINS asked if it  would insulate the department somewhat                                                               
from acts or omissions.                                                                                                         
MS. VOIGTLANDER  responded that this  would immunize  the actions                                                               
arising out of  the search and rescue. "It would  mean that there                                                               
could  not be  a civil  law suit  for damages,  a tort  liability                                                               
She explained that  the proposed amendment cleans  up language in                                                               
the civil and homeland defense sections.                                                                                        
SENATOR FRENCH  said he reads the  bill as being an  absolute bar                                                               
to any  claim that arises out  of the troopers handling  a search                                                               
and rescue.                                                                                                                     
TAPE 03-31, SIDE A                                                                                                            
2:48 p.m.                                                                                                                     
SENATOR FRENCH  said it's possible  to imagine a  situation where                                                               
there is just outright negligence.                                                                                              
COMMISSIONER  TANDESKE  said he  would  have  to defer  to  legal                                                               
SENATOR OGAN asked how many cases there are for fire fighting.                                                                  
MS. VOIGTLANDER replied the Miller's  Reach fire was consolidated                                                               
into one class  action case and there is one  other claim and one                                                               
other lawsuit. She  didn't know of a dollar value  for either one                                                               
of them. She is hesitant to  comment on Miller's Reach because it                                                               
is in trial right now.                                                                                                          
CHAIR  SEEKINS asked  if  this  statute would  act  as  a bar  to                                                               
protect  the  state from  these  types  of  actions in  the  fire                                                               
fighting area.                                                                                                                  
MS. VOIGTLANDER replied yes, but  she noted that this legislation                                                               
is not retroactive.                                                                                                             
MR. JEFF  JAHNKE, State Forester,  said that there are  about 150                                                               
million acres to protect and they  get between 500 and 600 forest                                                               
fires per  year. Their  success depends on  a safe  and effective                                                               
initial attack  to prevent small  fires from becoming  big fires.                                                               
SB  171 would  provide  immunity for  firefighters fighting  wild                                                               
land  fires. This  is important  for two  major reasons.  One, it                                                               
would  allow the  firefighters  to focus  on  safe and  effective                                                               
firefighting  rather than  having to  weigh the  potential for  a                                                               
lawsuit in every decision they  make during their initial attack.                                                               
Second, it would  reassure the state firefighters  that they have                                                               
the same  protection and  immunity that  their local  and federal                                                               
counterparts, who  are often fighting  with them, have.  It would                                                               
reduce reluctance to becoming a leader.                                                                                         
SENATOR THERRIAULT  motioned to adopt amendment  #1, sponsored by                                                               
the attorney general's office.                                                                                                  
MS. VOIGTLANDER  explained that the recitations  referring to the                                                               
federal agencies  are not germane  to immunizing state  and local                                                               
employees.  The  proposed amendment  makes  clear  that the  bill                                                               
pertains to  officers who  are members  of the  state's organized                                                               
militia on state active duty.                                                                                                   
CHAIR SEEKINS  announced there is  no objection to  the amendment                                                               
and  it is  adopted. He  said he  would hold  the bill  because a                                                               
number of other  people indicated intent to  testify. There being                                                               
no further  business to come  before the committee,  he adjourned                                                               
the meeting at 3:00 p.m.                                                                                                        

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