Legislature(2003 - 2004)
04/30/2003 01:48 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE SENATE JUDICIARY STANDING COMMITTEE April 30, 2003 1:48 p.m. MEMBERS PRESENT Senator Ralph Seekins, Chair Senator Gene Therriault Senator Johnny Ellis Senator Hollis French MEMBERS ABSENT Senator Scott Ogan, Vice Chair COMMITTEE CALENDAR HOUSE BILL NO. 34 "An Act relating to negotiated regulation making; and providing for an effective date." MOVED HB 34 OUT OF COMMITTEE SENATE BILL NO. 160 "An Act relating to civil liability for use or attempted use of an automated external defibrillator; and providing for an effective date." MOVED CSSB 160(HES) OUT OF COMMITTEE SENATE BILL NO. 152 "An Act relating to concealed handguns. HEARD AND HELD CS FOR HOUSE BILL NO. 249(JUD) am "An Act relating to the award of costs and attorney fees to defendants under court rule in civil actions brought under monopoly and restraint of trade statutes; and providing for an effective date." HEARD AND HELD SENATE BILL NO. 93 "An Act relating to limitations on actions to quiet title to, eject a person from, or recover real property or the possession of it; and providing for an effective date." HEARD AND HELD PREVIOUS ACTION HB 34 - See State Affairs minutes dated 4/15/03. SB 160 - See HESS minutes dated 4/11/03. SB 152 - See State Affairs minutes dated 4/15/03. HB 249 - No previous action to consider. SB 93 - See Labor and Commerce minutes dated 3/11/03 and 4/1/03. See Judiciary minutes dated 4/16/03. WITNESS REGISTER Ms. Barbara Cotting Staff to Representative Jim Holm Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Commented on HB 34. Senator Don Olson Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Sponsor of SB 160. Ms. Jennifer Arp Alaska Advocacy Director American Heart Association 1057 W. Fireweed Lane #100 Anchorage, AK 99503 POSITION STATEMENT: Supported SB 160. Mr. Mark Johnson, Chief Community Health and Emergency Medical Services Department of Health & Social Services PO Box 110601 Juneau, AK 99801-0601 POSITION STATEMENT: Supported SB 160. Mr. Brian Hove Staff to Senator Seekins Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Commented on SB 152 for the sponsor. Mr. Brian Judy National Rifle Association 555 Capitol Mall Suite 625 Sacramento, CA 95814 POSITION STATEMENT: Supported SB 152. Mr. Jeff Feldman, Attorney Trident Seafood Corporation Anchorage, AK 99501 POSITION STATEMENT: Supported SB 152. Representative Carl Moses Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Commented on SB 152. Ms. Amy Seitz Staff to Senator Wagoner Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Commented on SB 93. Mr. Jon Tillinghast Sealaska Corporation One Sealaska Plaza Juneau, AK 99801 POSITION STATEMENT: Commented on SB 93. ACTION NARRATIVE TAPE 03-33, SIDE A HB 34-REPEAL SUNSET OF NEGOTIATED REG.MAKING CHAIR RALPH SEEKINS called the Senate Judiciary Standing Committee meeting to order at 1:48 p.m. Present were Senators Ellis, Therriault and Chair Seekins. He announced HB 34 to be up for consideration. MS. BARBARA COTTING, Staff to Representative Jim Holm, sponsor of HB 34, explained that in 1998 a process called negotiated regulation making was authorized in statute and was given a sunset date of July 1, 2003. HB 34 repeals that sunset so the process can continue to be used. It's been widely supported and makes regulation writing much more applicable to reality, allowing a team of affected parties to negotiate the regulations. It takes more time at the beginning of the process, but saves so much at the end by eliminating lawsuits and lengthy public appeals. Two of the most notable successes are the charitable gaming regulations (2001) in the Department of Revenue and the cruise ship waste disposal (2002) in the Department of Environmental Conservation. Both of those were resolved using the formal negotiated process. SENATOR ELLIS said he supported the bill 100 percent. SENATOR THERRIAULT moved to pass HB 34 from committee with individual recommendations and the two accompanying zero fiscal notes. There was no objection and it was so ordered. SB 160-CIVIL LIABILITY FOR DEFIBRILLATOR USE CHAIR SEEKINS announced CSSB 160(HES) to be up for consideration. SENATOR OLSON, sponsor of SB 160, said he introduced this bill because every year over 250,000 people die from a sudden cardiac arrest and the most important treatment for more than half of them is immediate defibrillation, which is an electrical shock that is intended to restore normal heart rhythm. For each minute a person remains in cardiac arrest, their chance of survival deceases by seven to ten percent. The current generation of automatic external defibrillators (AEDs) is much safer and easier to use having the ability to discern between shockable and nonshockable rhythms. For that reason, it's impossible for a person to get shocked if he doesn't need it. Businesses and municipalities that are interested in making AED's available and more accessible in the workplace are somewhat discouraged because of their potential liability. The American Heart Association supports this bill. SENATOR FRENCH asked how prevalent AEDs are in the workplace in Alaska. SENATOR OLSON answered, where he comes from in bush Alaska, AEDs are non-existent. He knows of just the one in the state building, but the fact that it is on only one floor would significantly diminish its effectiveness to people on other floors. CHAIR SEEKINS remarked that if someone had to run it up or down the stairs, two machines might be needed. SENATOR FRENCH asked how much the units cost. SENATOR OLSON replied it depends on how sophisticated they are. Some earlier generation ones are $1,000 to $1,500; the kind in the legislative lounge is $2,500 and the gold standard unit is $3,200. SENATOR THERRIAULT said he remembers some opposition to the bill last year and asked if any groups had expressed opposition. SENATOR OLSON replied he hasn't heard any opposition. He reiterated that these machines have become safer and safer. SENATOR THERRIAULT asked if language was modified from last year's bill. SENATOR OLSON replied yes, language on page 2, lines 10 - 26, was reworked and was much easier to understand. MS. JENNIFER ARP, American Heart Association, supported SB 160 for the reasons stated by Senator Olson. The American Heart Association has outlined a four-step plan called the Chain of Survival because every second counts in cardiac arrest cases. Defibrillators play a critical part in the chain of survival. The four links in the chain are: one, early access or recognizing that a cardiac emergency exists and immediately calling emergency medical services; second, early CPR; third, early defibrillation, which means having immediate access to a properly working AED; and four, early advanced care, which means having qualified paramedics with up-to-date advanced cardiac life support training. Early defibrillation is often called the critical link in the chain of survival, because it is actually the only way to successfully treat most cardiac arrests. A cardiac arrest victim who is not defibrillated within eight to ten minutes has virtually no chance of survival. SB 160 will improve the chance of survival in several ways - by eliminating the threat of civil liability for providing AEDs, thus making them more readily available, and by providing appropriate training. The bill also eliminates civil liability for individuals who use an AED on a victim in an emergency. CHAIR SEEKINS said the bill defines appropriate training and asked if the Heart Association offers the certification training courses. MS. ARP replied they do. The course takes a couple of hours and involves both CPR and basic AED training. The American Red Cross offers the class as well. She didn't know of any other organization that provided the training. CHAIR SEEKINS asked if it is clear to everyone what an AED looks like and does it need to be defined in statute. He was concerned that someone might call another device, that wouldn't do the job, by the same name. MS. ARP replied the wording in the title may have just one meaning. SENATOR OLSON pointed out that there is a difference between a defibrillator and an AED. Defibrillators have been on the market for a long time and don't have what qualifies as an AED. He demonstrated an AED for the committee. MR. MARK JOHNSON, Chief, Community Health and Emergency Medical Services, supported SB 160 for all the reasons already stated. He added that the department recognizes at least one other course, but he didn't have the name with him. He said that wherever AEDs are placed, the local emergency medical service should be notified so that the EMS dispatcher would be able to tell someone who called where the device is located. No one knows specifically how many there are. The department received a federal grant to purchase 80 AEDs and they are in the process of distributing them across the state. Some municipalities and organizations have been reluctant to have the devices because of potential liability, but that is addressed in this bill. He said that the training classes run two to four hours and the Food and Drug Administration regulates the devices. CHAIR SEEKINS asked if the department had a position on the bill. MR. JOHNSON replied the department supports the bill. SENATOR THERRIAULT motioned to pass CSSB 160(HES) from committee with the accompanying fiscal note. There was no objection and it was so ordered. SB 152-CONCEALED HANDGUNS CHAIR SEEKINS announced SB 152 to be up for consideration. 2:18 - 2:20 p.m. - at ease MR. BRIAN HOVE, Staff to Senator Seekins, sponsor of SB 152, explained: In 2002, SB 242 was introduced to clarify and simplify the procedures for recognizing concealed handgun permits for other states. As a result of a floor amendment offered late in the session, recognition was limited to those permits held by individuals who had not had a permit denied or revoked. Although the amendment appeared to be reasonable on the surface, an unintended consequence resulted in Texas, the most populous state in the Union, refusing reciprocity. The refusal is technically bureaucratic in nature, yet presents a barrier to reciprocity. SB 152 attempts to resolve this issue. The first section of the bill recognizes permit holders from other states and valid permit holders in Alaska. A second section of the legislation requires the Alaska Department of Public Safety to enter into reciprocity agreements with other states when it is necessary to benefit Alaska permit holders. SENATOR FRENCH asked how many permits are in the state. MR. HOVE replied that he didn't have that information, but he would get it for him. SENATOR FRENCH said he would also like to know how many people apply each year and, of that group, how many are turned down. MR. BRIAN JUDY, National Rifle Association, supported SB 152 for the reasons stated by Mr. Hove. He reported that there are approximately 17,600 permits outstanding in Alaska and most of those were issued in the early years (after concealed carry became law in 1995). Now, the bulk of the permits are renewals. Each year approximately 35 permits are either denied or revoked and most of those are because a person is prohibited from owning a firearm. They would not be qualified to receive a permit in any other state for those reasons. SENATOR FRENCH said typically being a convicted felon is what keeps people from being able to get a permit. He questioned whether Alaska would receive any kind of alert if a convicted felon were to leave this state and go to another state and get a permit there based because the other state failure to do a thorough check. MR. JUDY responded yes. All the states that issue permits background checks and most have that requirement in their state statute. Virtually every one of those states, like Alaska, requires that the background check be fingerprint based. SENATOR FRENCH clarified that he was thinking about the legality of the permit, itself, and perhaps the person changed one letter on his name so they didn't get a good check or perhaps the check wasn't done properly or done at all. CHAIR SEEKINS asked if it would be difficult to get a permit revoked if a resident here knew of a convicted felon who had one. MR. JUDY replied: If it was determined that a person was in possession of a firearm and a concealed weapon permit and they were, in fact, ineligible for the permit because they were prohibited from owning firearms, they could be arrested and charged merely for possession of the firearm. Alaska state law allows anybody who can lawfully own and possess a firearm to carry openly. If a person did, under the rare circumstance where a person had a permit denied or revoked for a reason that was not prohibiting, they could still carry openly in Alaska and it would basically nullify their need to go out of state in the first place. CHAIR SEEKINS asked if there was a definition for open carry. MR. JUDY said yes. CHAIR SEEKINS asked whether a person that did not have a permit to carry a concealed weapon would be deemed to be carrying openly or carrying concealed if they put their firearm inside the console in their car so it couldn't be seen while they were shopping. MR. JUDY replied, "If the firearm is carried on or around the person and concealed, under existing law, they are required to have a permit unless they are engaged in a lawful outdoor activity." Shopping would not be considered an outdoor activity and in that case, it would be concealed and they would have to take the firearm out of the console and have it someplace in the open. CHAIR SEEKINS asked if there was anything in this bill that would cause Alaskans not to be able to get reciprocity with any other state. MR. JUDY replied if this bill passes, we would have a fine recognition law and an effective opportunity for the Department of Public Safety (DPS) to enter into reciprocity agreements. SENATOR THERRIAULT asked if had been adjudicated that carrying a gun in a glove box is concealed and if you don't have a permit, that's against the law. MR. JUDY replied he wasn't positive there was case law and if a firearm was in the trunk, that would be okay, but it would have to be unloaded. SENATOR THERRIAULT said he didn't understand what was meant by on or about your person. CHAIR SEEKINS said he didn't think it was clear either. SENATOR FRENCH observed that AS 11.61.220, misconduct involving weapons in the fifth degree, makes it a crime to possess a deadly weapon concealed on the person. While he was a district attorney, he looked at situations with guns under the seat and didn't even think about prosecuting a person unless it was on the person. SENATOR THERRIAULT asked if a firearm was being carried or concealed if it was in a purse. SENATOR FRENCH replied he wouldn't argue that point, if the person was in a car. District attorneys were always very aware that Alaskan juries would give the benefit of the doubt to the citizen. TAPE 03-33, SIDE B MR. JUDY said different states handle the issue differently. The state of Oregon allows loaded and unloaded firearms to be carried in vehicles; the state of Montana requires a concealed weapon permit if you're carrying concealed within city limits. Vermont doesn't require a concealed permit at all. He noted that Representative Croft has a bill that would follow the Vermont law. CHAIR SEEKINS said he was concerned about the law not being prosecuted, which could lead to selective prosecution. He thought it would be worth looking at eliminating it. CHAIR SEEKINS announced that SB 152 would be held in committee. HB 249-RESTRAINT OF TRADE: ATTY FEES AND COSTS CHAIR SEEKINS announced HB 249 to be up for consideration. REPRESENTATIVE LESIL MCGUIRE, sponsor of HB 249, said it clarifies provisions of the Alaska anti-trust act with respect to attorney's fees and costs that are awarded to a prevailing party in an anti-trust case. Alaska Civil Rule 82(A) is the prevailing rule for attorney's fees in the state of Alaska in all civil actions. That rule states that, "Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule." REPRESENTATIVE MCGUIRE stated that she thought Alaska's law was fair in that when parties enter into litigation, they know there is the potential, if they lose the case, for having to pay attorney's fees and likewise for the other side. She thought it makes sense to ask the parties to take a hard look before they enter into litigation to make sure the case is based on sound law and principles - otherwise they might have to pay the prevailing parties' costs and fees. This has not been clarified in the area of anti-trust. Current law states that a successful plaintiff may recover at least partial attorney's fees and, in some circumstances, may recover full attorney's fees (AS 45.50.576(a). The act as it exists now, does not expressly state how, if at all, this statutory provision is intended to affect the right of a successful anti-trust defendant. HB 249 clarifies that the rule that is applicable to all civil cases in Alaska will be applied to anti-trust litigation. She said that her committee's research has showed that the courts have been heading in that direction. It is consistent with another area of law, consumer protection in unfair trade practices cases. That provision is governed under AS 45.50.537, where the Legislature sought to address it specifically the same way as Rule 82(a) that says, if you are a successful plaintiff in a consumer protection and unfair trade practice case, you shall recover full and reasonable attorney's fees and a successful defendant shall recover partial attorney's fees in accordance with standard court rules. There is precedence for the legislature acting in specific areas of the law. REPRESENTATIVE MCGUIRE said some objections were addressed with an amendment and she called their attention to page 1, lines 14 - page 2, which clarifies, because of a pending lawsuit, that if you are a member of a class action anti-trust suit, you can't be held personally liable. She explained that Rule 23 is an opt-out rule and because of that, you can be a member of a class action lawsuit and not even be aware of it. It would be inappropriate to hold any person liable. She said there was considerable discussion about the effective date, which did pass. She emphasized that when the Legislature seeks to clarify an area of the law they believe is appropriate, as in this case, it should be done clearly, effectively and immediately. To say that it won't be effective immediately sends a convoluted message to the court. MR. JEFF FELDMAN, attorney representing Trident Seafoods, stated that this is a fair bill. Alaska anti-trust law is modeled after the federal law that has no Rule 82. He supported it for the reasons already stated. Alaska's anti-trust statute doesn't specifically address what happens to prevailing defendants and leaves them essentially litigation orphans. They are one of the few special classes of litigants where if you defend yourself and win, if you can convince a jury the case was wrongfully brought, you alone are not granted any relief unless you bear the cost of that case without any compensation. "People who are in that position think it's unfair." SENATOR FRENCH asked if there is no recovery of attorney's fees if the plaintiffs don't prevail at all and no other monies have been collected from the defendants throughout the litigation. MR. FELDMAN replied that is correct. CHAIR SEEKINS asked Mr. Feldman if in Alaska a person could be part of a class action lawsuit without having assessed the risks and rewards of being involved in the action. MR. FELDMAN replied that's not supposed to happen, but it does work out that way. When the court certifies a class, the class counsel is directed to send notices to the class members. Those notices go out, but a lot of people don't pay attention to them. CHAIR SEEKINS questioned the fact that a person could be a part of a lawsuit without knowing it the same as he could receive a magazine subscription by not returning a card saying he didn't want it. MR. FELDMAN explained that Alaska is an opt-out state and the opt-out rate is very low in class action lawsuits, because most people don't pay attention. If it were opt-in, most people wouldn't take the time to opt in, either. SENATOR FRENCH asked if the Miller's Reach case is class action. MR. FELDMAN said it is. REPRESENTATIVE CARL MOSES said he attempted to amend the bill so it wouldn't affect a judicial proceeding that is happening right now. "You don't change the rule in the middle of the game, particularly when there are a number of defendants that have settled out of court to the tune of over $40 million." SENATOR ELLIS said he remembers discussing pending cases in committees, but there was a different standard on the floor. SENATOR THERRIAULT read section 111 that says any matter waiting adjudication in the court should not be debated or discussed in a legislative body. REPRESENTATIVE MOSES reiterated that decisions have been made based on what the rule is today and yesterday. The decisions might have been otherwise if the rule was different. CHAIR SEEKINS said he would hold CSHB 249(JUD) am for further review. SB 93 ADVERSE POSSESSION CHAIR SEEKINS announced SB 93 [work draft CSSB 93 ( ) \V version] to be up for consideration. MS. AMY SEITZ, Staff to Senator Wagoner, sponsor of SB 93, said there was previous committee discussion on public utilities and boundaries and there were two amendments that addressed the issue. SENATOR ELLIS moved amendment 1 for purposes of discussion. There was no objection and it was so ordered. SENATOR THERRIAULT asked where the new section went. MS. SEITZ replied it goes in under AS 09.45.05 section 2(a) and it clarifies boundary issues. MR. JON TILLINGHAST, Sealaska Corporation, said he thought he misadvised Senator Therriault in the last meeting. He used the example of, if he had a fence that was one foot on his neighbor's property, would he be able to quiet title after the fence had been there for 11 years. He said yes, he would, because the claim would be brought under color of title, but this bill doesn't touch the color of title portion of adverse possession. The courts have said no that the simple boundary disputes are not color of title type adverse possession claims; they are the other type of adverse possession claims, which we are affecting in this bill. Therefore, this amendment makes it clear that the Legislature is retaining, not only color of title adverse possession claims, but also the good faith, the simple boundary dispute, adverse possession claims that Senator Therriault asked about. SENATOR FRENCH asked if they were just adding the good faith claims exemption to the adverse possession statute. MR. TILLINGHAST added that it's exempting them from the effects of the bill and, therefore, retaining them in their present form. SENATOR FRENCH asked if this was new language that didn't appear anywhere else in Alaska statute today. MR. TILLINGHAST replied that was correct. SENATOR FRENCH asked how these claims were litigated in the past. MR. TILLINGHAST replied that they would have been litigated under the other adverse possession statute, AS 09.10.030, which this bill, in essence, abrogates. SENATOR THERRIAULT asked for a definition of color of title. MR. TILLINGHAST explained it is any written instrument. The reason he thought that color of title would cover boundary claims is that if his boundary fence was a foot too far over on to his property, he would be claiming that extra foot under his deed to his house. However, the courts don't look at it that way. They say no, under color of title, you only receive whatever land is actually described in whatever written instrument you're relying upon. "It covers good faith claims generally that are based on some writing, ... but it doesn't cover the misplaced fence type of claim." If he intentionally trespassed on someone else's property with a fence, he would not be protected, but if it was unintentional, he would. CHAIR SEEKINS asked if he bought a piece of property and a porch was already there and everybody had always assumed that it had been there in the past, then he's not inheriting some kind of liability. MR. TILLINGHAST replied that was correct. SENATOR THERRIAULT asked Ms. Seitz if she ran this language by the legal department. MS. SEITZ replied her office just received the working document this morning so they didn't have a chance to do that. SENATOR ELLIS withdrew his motion to adopt amendment 1. There was no objection and it was so ordered. SENATOR ELLIS made a motion to adopt conceptual amendment 1 to be worked on by legislative legal with the correct locator information, etc. SENATOR THERRIAULT noted that in Fairbanks, at least, one subdivision was surveyed and everyone's lot was off by one foot. Also, earthquakes stretch and compress properties and there has to be a way to take care of those things. There was no objection to conceptual amendment 1 and it was adopted. SENATOR ELLIS made a motion to adopt conceptual amendment 2 as a conceptual amendment. MS. SEITZ explained that amendment 2 leaves public utilities the way the law is now. After ten years, power lines and such can go through adverse possession to claim the easements. Homer Electric, Chugach Electric and ARECA are satisfied with the amendment. SENATOR FRENCH said he thought the wording needed to be tightened up on page 2, line 2. SENATOR THERRIAULT motioned to have legislative legal work with the sentence. With that, there was no objection and it was so ordered. CHAIR SEEKINS announced that they would wait for the new language before passing the bill [CSSB 93(JUD)] out of committee. There being no further business to come before the committee, he adjourned the meeting at 3:22 p.m.