Legislature(2003 - 2004)

04/30/2003 01:48 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                               
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                                                               
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                                                               
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                                                               
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                                                                    
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                                                               
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                                                               
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                                                               
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,                                                               
     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                                                                    
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
                   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                                                               
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                                                               
     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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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.                                                                                

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