Legislature(2003 - 2004)

05/08/2003 08:05 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                          May 8, 2003                                                                                           
                           8:05 a.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                                                                                                            
                                                                                                                                
CS FOR HOUSE BILL NO. 1(JUD)                                                                                                    
"An  Act  relating to  stalking  and  to violating  a  protective                                                               
order;  and  amending Rules  4  and  65,  Alaska Rules  of  Civil                                                               
Procedure, and Rule 9, Alaska Rules of Administration."                                                                         
     MOVED CSHB 1(JUD) OUT OF COMMITTEE                                                                                         
                                                                                                                                
CS FOR HOUSE BILL NO. 214(JUD)                                                                                                  
"An Act relating  to the recovery of punitive  damages against an                                                               
employer who is  determined to be vicariously liable  for the act                                                               
or  omission  of an  employee;  and  providing for  an  effective                                                               
date."                                                                                                                          
     HEARD AND HELD                                                                                                             
                                                                                                                                
HOUSE BILL NO. 224                                                                                                              
"An Act  relating to a tobacco  product manufacturer's compliance                                                               
with  certain statutory  requirements regarding  cigarette sales;                                                               
and providing for an effective date."                                                                                           
     ITEM REMOVED FROM AGENDA                                                                                                   
                                                                                                                                
CS FOR HOUSE BILL NO. 46(STA)                                                                                                   
"An Act  relating to printing  of ballot titles  and propositions                                                               
on primary election ballots."                                                                                                   
     MOVED CSHB 46(STA) OUT OF COMMITTEE                                                                                        
                                                                                                                                
CS FOR HOUSE BILL NO. 49(JUD)                                                                                                   
"An   Act   relating   to   the   deoxyribonucleic   acid   (DNA)                                                               
identification  registration system  and  testing; and  providing                                                               
for an effective date."                                                                                                         
     MOVED SCS CSHB 49(JUD) OUT OF COMMITTEE                                                                                    
                                                                                                                                
SENATE BILL NO. 175                                                                                                             
"An Act  relating to civil liability  for commercial recreational                                                               
activities   and  for   guest  passengers   on  an   aircraft  or                                                               
watercraft; and providing for an effective date."                                                                               
     MOVED CSSB 175(JUD) OUT OF COMMITTEE                                                                                       
                                                                                                                                
PREVIOUS ACTION                                                                                                               
                                                                                                                                
HB  1 -  See State  Affairs minutes  dated 4/24/03  and Judiciary                                                               
minutes dated 5/3/03 and 5/7/03.                                                                                                
                                                                                                                                
HB  214  - See  Labor  and  Commerce  minutes dated  4/29/03  and                                                               
     5/1/03. See Judiciary minutes dated 5/6/03.                                                                                
HB 46  - See  State Affairs minutes  dated 3/18/03  and Judiciary                                                               
     minutes dated 4/9/03.                                                                                                      
HB 49 - See Judiciary minutes dated 5/2/03.                                                                                     
SB  175 -  See  Labor  and Commerce  minutes  dated 4/29/03.  See                                                               
     Judiciary minutes dated 5/5/03.                                                                                            
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Representative Cheryll Heinze                                                                                                   
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Sponsor of HB 1.                                                                                          
                                                                                                                                
Representative Ralph Samuels                                                                                                    
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Sponsor of HB 214.                                                                                       
                                                                                                                                
Ms. Sara Nielson                                                                                                                
Staff to Representative Samuels                                                                                                 
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Commented on HB 214.                                                                                      
                                                                                                                                
Ms. Marsha Davis, General Council                                                                                               
ERA Aviation                                                                                                                    
POSITION STATEMENT: Commented on HB 214.                                                                                      
                                                                                                                                
Mr. Mike Ford, Attorney                                                                                                         
Division of Legal and Research Services Division                                                                                
Legislative Affairs Agency                                                                                                      
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Commented on HB 214 and SB 175.                                                                           
                                                                                                                                
Representative Tom Anderson                                                                                                     
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Sponsor of HB 49.                                                                                         
                                                                                                                                
Ms. Annie Carpeneti                                                                                                             
Criminal Division                                                                                                               
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT: Supported HB 49.                                                                                          
                                                                                                                                
Mr. Mike Winded                                                                                                                 
Alaska Travel Adventures                                                                                                        
Alaska Travel Industry Association                                                                                              
9085 Glacier Hwy                                                                                                                
Juneau, AK 99801                                                                                                                
POSITION STATEMENT:  Supported SB 175.                                                                                        
                                                                                                                                
Ms. Linda Anderson                                                                                                              
Alaska Travel Industry Association                                                                                              
9085 Glacier Hwy                                                                                                                
Juneau AK 99801                                                                                                                 
POSITION STATEMENT: Commented on SB 175.                                                                                      
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 03-41, SIDE                                                                                                              
                                                                                                                              
              HB   1-STALKING & PROTECTIVE ORDERS                                                                           
                                                                                                                                
CHAIR  RALPH   SEEKINS  called  the  Senate   Judiciary  Standing                                                             
Committee meeting  to order  at 8:05  a.m. Present  were Senators                                                               
Ellis and French. The first order  of business to come before the                                                               
committee was HB 1.                                                                                                             
                                                                                                                                
CHAIR SEEKINS recapped that Senator  Therriault's motion to amend                                                               
HB 1  was before  the committee  in the last  meeting and  now he                                                               
wanted  to withdraw  that motion.  He announced  that they  would                                                               
hold the bill until Senator Therriault arrived.                                                                                 
                                                                                                                                
          SB 175-LIABILITY:RECREATIONAL ACTIVITY/BOATS                                                                      
                                                                                                                                
CHAIR  SEEKINS  announced  SB  175,  version \S,  to  be  up  for                                                               
consideration.                                                                                                                  
                                                                                                                                
SENATOR FRENCH noted  that bungee jumpers were added  to the list                                                               
in  the S  version. He  asked  what spectrum  of activities  they                                                               
would cover and if dude ranches were added.                                                                                     
                                                                                                                                
SENATOR ELLIS asked if there were dude ranches in Alaska.                                                                       
                                                                                                                                
CHAIR  SEEKINS  said  he  heard there  were  several  dude  ranch                                                               
organizations around Denali Park.                                                                                               
                                                                                                                                
SENATOR FRENCH  asked if  the liability of  his son's  Solid Rock                                                               
Camp would be affected.                                                                                                         
                                                                                                                                
CHAIR SEEKINS  said he  didn't know  if that  would qualify  as a                                                               
dude ranch,  but most of  those activities were covered  under HB                                                               
176,  livestock activities,  on  the floor  today.  He said  they                                                               
would put SB 175 aside temporarily.                                                                                             
                                                                                                                                
SENATOR THERRIAULT arrived at 8:17 a.m.                                                                                         
                                                                                                                                
              HB   1-STALKING & PROTECTIVE ORDERS                                                                           
                                                                                                                                
CHAIR SEEKINS announced HB 1 to be back before the committee.                                                                   
                                                                                                                                
SENATOR THERRIAULT  motioned to  withdraw amendment 1.  There was                                                               
no objection and it was so ordered.                                                                                             
                                                                                                                                
SENATOR  FRENCH   asked  if  this  parallels   domestic  violence                                                               
restraining order statutes for stalking  victims and if there was                                                               
an emergency provision.                                                                                                         
                                                                                                                                
REPRESENTATIVE  HEINZE, sponsor  of HB  1, replied  yes, although                                                               
domestic  violence  does  not  have  to be  a  component  of  the                                                               
stalking.                                                                                                                       
                                                                                                                                
CHAIR SEEKINS added there is an emergency provision.                                                                            
                                                                                                                                
SENATOR THERRIAULT motioned  to pass CSHB 1  (JUD) from committee                                                               
with individual recommendations and  attached fiscal notes. There                                                               
were no objections and it was so ordered.                                                                                       
                                                                                                                                
           HB 214-PUNITIVE DAMAGES AGAINST EMPLOYERS                                                                        
                                                                                                                                
CHAIR SEEKINS announced HB 214 to be up for consideration.                                                                      
                                                                                                                                
REPRESENTATIVE SAMUELS,  sponsor of HB 214,  explained that there                                                               
had  been  discussions  of  the  definitions  of  management  and                                                               
management  agent  in  a  previous  meeting  and  that  had  been                                                               
incorporated into a committee substitute.                                                                                       
                                                                                                                                
SENATOR THERRIAULT  motioned to adopt SCS  CSHB 214(JUD), version                                                               
\Q. There was no objection and it was so ordered.                                                                               
                                                                                                                                
REPRESENTATIVE  SAMUELS said  the  substance of  the bill  didn't                                                               
change, but the definitions were put  in. He said the language in                                                               
the bill is from restatements  of the national standard, but it's                                                               
even closer with  this version.  The definitions out  of the VECO                                                               
v.  Rosemont   case  concerned  sexual  harassment   outside  the                                                               
workplace.                                                                                                                      
                                                                                                                                
SENATOR FRENCH said the Alaska  State Supreme Court reversed that                                                               
saying  that you  couldn't give  punitive damages  for harassment                                                               
outside the workplace.                                                                                                          
                                                                                                                                
REPRESENTATIVE  SAMUELS  replied  that  in  this  bill  "punitive                                                               
damages may not be awarded unless  the employee was employed in a                                                               
managerial  capacity   and  was   acting  within  the   scope  of                                                               
employment", which should include Senator French's concerns.                                                                    
                                                                                                                                
MS.  SARA  NIELSON, Staff  to  Representative  Samuels, said  she                                                               
talked  with the  drafter who  said it  was better  to leave  the                                                               
definition broad, which would leave it up to the court.                                                                         
                                                                                                                                
SENATOR FRENCH said  he was more concerned with  language on line                                                               
14 that says,  "...was employed in a managerial  capacity and was                                                               
acting within the  scope of employment." He  thought the previous                                                               
clause had to do with a renegade employee.                                                                                      
                                                                                                                                
CHAIR  SEEKINS responded  that if  they are  acting within  their                                                               
scope  of employment  their employer  can be  vicariously liable,                                                               
but any  foreman acting outside  the scope of his  employment and                                                               
authority   should  not   subject  his   employer  to   vicarious                                                               
liability.                                                                                                                      
                                                                                                                                
SENATOR FRENCH said he thought  the committee should keep in mind                                                               
"that if we  think we're adopting one rule when  in fact the rule                                                               
has consistently been interpreted the  other way, we'd be wasting                                                               
our time."                                                                                                                      
                                                                                                                                
In the  Laidlaw case where  the bus driver was  smoking marijuana                                                               
while  she was  on the  job, you  would believe  intuitively that                                                               
that was completely  outside the scope of her  employment. No one                                                               
would believe that smoking marijuana  would be part of a person's                                                               
job.                                                                                                                            
                                                                                                                                
     Yet,  in the  Laidlaw case,  the court  said, and  I'll                                                                    
     quote  it,  'Moreover,  the fact  that  Laidlaw  policy                                                                    
     explicitly   prohibits  smoking   marijuana  does   not                                                                    
     insulate  the company  from liability.  A wrongful  act                                                                    
     committed   by  an   employee  while   acting  in   his                                                                    
     employer's business  does not take the  employee out of                                                                    
     the  scope  of  employment  even if  the  employer  has                                                                    
     expressly forbidden the act.'                                                                                              
                                                                                                                                
     That is partly  why we are being very  careful to limit                                                                    
     the liability  in this bill  to someone other  than the                                                                    
     lowest  level  employee -  I  believe  because of  that                                                                    
     result. And  so, what we're doing,  we're exempting the                                                                    
     burger flipper,  we're exempting the bus  driver, we're                                                                    
     exempting the people from the  very lowest rungs of the                                                                    
     business from making the employer liable.                                                                                  
                                                                                                                                
     So, for  that reason,  within the scope  of employment,                                                                    
     is part of  the battle, but managerial  capacity is the                                                                    
     other  part. No  one  in their  wildest imagination  is                                                                    
     going  to  say that  the  bus  driver is  a  managerial                                                                    
     employee,  because he  or  she  doesn't direct  policy,                                                                    
     doesn't  make the  call, doesn't  direct a  crew, isn't                                                                    
     fulfilling or  shaping how  the company  does business.                                                                    
     For that  reason I'm concerned  about where we  set the                                                                    
     line in this managerial capacity definition.                                                                               
                                                                                                                                
CHAIR  SEEKINS said  that the  bus  driver wasn't  even legal  to                                                               
drive at  the time and  although he  didn't want to  reargue that                                                               
case,  he  thought  it  was  fair to  say  that  in  the  future,                                                               
employers  should be  held responsible  for  decisions that  were                                                               
made within the scope of authority, not of employment.                                                                          
                                                                                                                                
REPRESENTATIVE  SAMUELS said  that  they have  to  draw the  line                                                               
somewhere  and  if  they  draw  it  too  low,  the  bill  becomes                                                               
worthless  and  that  puts  the entire  company  at  risk  again.                                                               
"That's just not fair, first of all."                                                                                           
                                                                                                                                
SENATOR FRENCH  said he still  had a problem with  the definition                                                               
of managerial  agent and wanted  to know  where in the  VECO case                                                               
this  definition came  from,  because page  10  of the  decision,                                                               
footnote 12, says:                                                                                                              
                                                                                                                                
     A  management level  employee has  been defined  as one                                                                    
     who  has the  'stature and  authority of  the agent  to                                                                    
     exercise control,  discretion and  independent judgment                                                                    
     for a certain  area of business with some  power to set                                                                    
     policy for the company.'                                                                                                   
                                                                                                                                
MS.  NIELSON  said that  language  could  be used.  "It  wouldn't                                                               
change it that much."                                                                                                           
                                                                                                                                
CHAIR  SEEKINS   said  that  "agent"  has   a  totally  different                                                               
definition than  "employee." An agent would  indicate someone who                                                               
is not  a regular  employee, but is  under contract  or something                                                               
like that.                                                                                                                      
                                                                                                                                
MS. MARSHA DAVIS,  General Council, ERA Aviation,  said the agent                                                               
is a  very broad  concept in  law. Using the  term here  does not                                                               
restrict  it from  applying to  employees. She  said they  didn't                                                               
want the  perception that  they were trying  to deviate  from the                                                               
restatement in  terms of  how the clause  would be  applied. This                                                               
version  uses the  structure of  section 909  of the  restatement                                                               
almost verbatim. The only difference  is they inserted "employer"                                                               
for  "principal"  -  the only  substantive  difference  with  the                                                               
attempt to  define the concept  of what  is a manager  agent. She                                                               
also noted where  the restatement sets out  the general principal                                                               
of law, there  is a section called "comments"  that adds examples                                                               
for clarification.                                                                                                              
                                                                                                                                
She said the  fourth category is the one that  hangs the employer                                                               
out the most. It says if  the employee who did the wrongdoing was                                                               
at a  high enough level, they  are liable no matter  how innocent                                                               
the employer  may be. For that  reason in the comment  section it                                                               
says  it's  to  deter  an   employer  from  hiring  [questionable                                                               
characters] for  important positions. You assume  the employer is                                                               
acting  within the  scope  and that  the  employer is  vicarious.                                                               
"That is a strict liability for the employers."                                                                                 
                                                                                                                                
But, when you step back to the  next level, do they want to allow                                                               
the punitive  damages to  be hooked to  the employer?  The Alaska                                                               
Supreme  Court has  said no  and  it would  only impose  punitive                                                               
damages on  the employer if  they met  one of the  four criteria.                                                               
The  restatement   sets  the  standard  quite   high  for  strict                                                               
liability for punitive damages.                                                                                                 
                                                                                                                                
SENATOR  FRENCH asked  if she  thought the  VECO definition  of a                                                               
management level employee was adequate.                                                                                         
                                                                                                                                
MS.  DAVIS replied  it didn't  give her  too much  heartburn. The                                                               
independent judgment is the critical piece in the definition.                                                                   
                                                                                                                                
CHAIR  SEEKINS  asked  her,  as an  attorney  who  represents  an                                                               
employer, if she was comfortable with the CS.                                                                                   
                                                                                                                                
MS. DAVIS replied that she was extremely comfortable.                                                                           
                                                                                                                                
SENATOR  FRENCH  said  he  would  be  interested  in  drafting  a                                                               
definition of  managerial agent and management  level employee to                                                               
comport  with what  they just  discussed coming  out of  the VECO                                                               
decision.                                                                                                                       
                                                                                                                                
CHAIR SEEKINS  noted that Senator  Ogan had some concerns  and he                                                               
would hold the bill for him to comment.                                                                                         
                                                                                                                                
REPRESENTATIVE  SAMUELS suggested  after  "employee"  on page  2,                                                               
line 1,  inserting the definition  that is in VECO  and eliminate                                                               
the rest of the sentence. It would read:                                                                                        
                                                                                                                                
     ...means a  management level employee with  the stature                                                                    
     and  authority  of  the   agent  to  exercise  control,                                                                    
     discretion  and  independent  judgment over  a  certain                                                                    
     area of the  business with some power to  set policy of                                                                    
     the company.                                                                                                               
                                                                                                                                
He said that language comes straight out of the footnote.                                                                       
                                                                                                                                
SENATOR FRENCH and Ms. Davis agreed with that.                                                                                  
                                                                                                                                
CHAIR  SEEKINS  said  they  would hold  that  in  abeyance  until                                                               
Senator Ogan could ask his questions.                                                                                           
                                                                                                                                
                HB  46-PRIMARY ELECTION BALLOTS                                                                             
                                                                                                                                
CHAIR SEEKINS  announced CSHB 46(STA),  version \H, to be  up for                                                               
consideration.                                                                                                                  
                                                                                                                                
REPRESENTATIVE MIKE HAWKER, sponsor of  HB 46, said it relates to                                                               
primary elections  and offers  voters a  ballot option  of having                                                               
just ballot propositions and not any candidates on the ballot.                                                                  
                                                                                                                                
SENATOR OGAN arrived at 8:43 a.m.                                                                                               
                                                                                                                                
SENATOR ELLIS applauded  the sponsor because he  stated this bill                                                               
does not change the closed  primary election system created by HB                                                               
193 in the last legislature.                                                                                                    
                                                                                                                                
SENATOR  THERRIAULT  moved  CSHB  46 (STA)  from  committee  with                                                               
individual  recommendations   and  fiscal  note.  There   was  no                                                               
objection and it was so ordered.                                                                                                
                                                                                                                                
           HB 214-PUNITIVE DAMAGES AGAINST EMPLOYERS                                                                        
                                                                                                                                
CHAIR  SEEKINS  announced  that  HB   214  was  back  before  the                                                               
committee.                                                                                                                      
                                                                                                                                
SENATOR OGAN said  he was concerned with  the vicarious liability                                                               
issue  and that  past  tort reform  limited  liability so  juries                                                               
couldn't award ridiculously high amounts in punitive damages.                                                                   
                                                                                                                                
TAPE 03-41, SIDE B                                                                                                            
                                                                                                                                
SENATOR  OGAN asked  for  the  liability to  the  employer to  be                                                               
explained  using  an  experience  he had  this  morning  where  a                                                               
restaurant employee wasn't dressed  appropriately and it raised a                                                               
question in  his mind  about whether or  not the  employee washed                                                               
his hands.                                                                                                                      
                                                                                                                                
MS. DAVIS responded that under this bill:                                                                                       
                                                                                                                                
     ...the  employer is  strictly  liable  for the  medical                                                                    
     bills for all  damages that flow from  a patron because                                                                    
     he's sick. This  does not change any  of the underlying                                                                    
     [indisc.]  of  damages.   Essentially,  the  public  is                                                                    
     protected  from  harm  and the  employer  is  the  deep                                                                    
     pocket no matter what those  employees do - unless that                                                                    
     employee were  outside the scope  of employment  - that                                                                    
     is not in a restaurant....                                                                                                 
                                                                                                                                
CHAIR SEEKINS said that in  effect this isolates the company from                                                               
having to  pay the punitive  damages for the  outrageous behavior                                                               
that  was not  authorized  by  the company  of  the employee  who                                                               
performed the outrageous behavior.                                                                                              
                                                                                                                                
MS. DAVIS added you would never  see punitive damages come out of                                                               
the type of situation Senator  Ogan described, but, if the person                                                               
was  sick with  typhoid  and  had intent  to  spread  it, if  the                                                               
employer saw  the employee  not washing his  hands and  didn't do                                                               
anything about  it, he  would be liable  for punitive  damages as                                                               
well.                                                                                                                           
                                                                                                                                
SENATOR OGAN wanted to know the definition for managerial agent.                                                                
                                                                                                                                
MS.  DAVIS replied  it  matches the  restatement  section 909  of                                                               
tort. They  are trying  to capture someone  who sets  policy. She                                                               
explained the use of comments in the law.                                                                                       
                                                                                                                                
MR.  MIKE FORD,  Attorney, Division  of Legal  Services, said  he                                                               
thought  the important  thing was  to be  clear on  how precisely                                                               
they want to  define this and using the VECO  definition would be                                                               
fine.                                                                                                                           
                                                                                                                                
SENATOR OGAN  referred to  an incident  where a  helicopter pilot                                                               
employee  didn't follow  company training  policy and  got in  an                                                               
accident to  ask whether the  company would be held  harmless for                                                               
anything other than the strict liability under this bill.                                                                       
                                                                                                                                
MR.  FORD  replied that  he  wasn't  sure  that it  would  change                                                               
anything, because they are trying  to draw a line between someone                                                               
who has the  actual authority to create or  modify the employer's                                                               
policies and he didn't think the pilot did have that authority.                                                                 
                                                                                                                                
CHAIR SEEKINS said the pilot  didn't have the authority to change                                                               
company policy and they are  strictly liable for the actions, but                                                               
they would not have to pay punitive damages against the pilot.                                                                  
                                                                                                                                
MR. FORD added that's assuming the pilot is just the pilot.                                                                     
                                                                                                                                
CHAIR SEEKINS said he likes  to make the employee responsible for                                                               
his own bad behavior.                                                                                                           
                                                                                                                                
SENATOR OGAN  said he  struggles with  that, because  it relieves                                                               
some of the employer's responsibility to monitor what goes on.                                                                  
                                                                                                                                
CHAIR SEEKINS interrupted  to say that they  are strictly liable,                                                               
but not for the punitive damages.                                                                                               
                                                                                                                                
SENATOR  OGAN replied  they have  insurance for  strict liability                                                               
and they don't always have insurance for punitive damages.                                                                      
                                                                                                                                
CHAIR SEEKINS said you couldn't insure against punitive damages.                                                                
                                                                                                                                
SENATOR THERRIAULT  asked Mr. Ford  whether an employer  could be                                                               
responsible for punitive damages if  they had a set of procedures                                                               
but training was inadequate.                                                                                                    
                                                                                                                                
MR. FORD replied  that the question would be  whether this person                                                               
has  the  power  to  set  policy.  If not,  he  would  not  be  a                                                               
managerial agent.                                                                                                               
                                                                                                                                
SENATOR OGAN asked  if, under this bill, the only  way they could                                                               
be sued for punitive damages is if their policies are not right.                                                                
                                                                                                                                
MR.  FORD  replied  no,  the   question  would  be  who  did  the                                                               
wrongdoing and  what kind of  employee were they. Did  they carry                                                               
out  policy  or did  they  set  policy?  Every  case rests  on  a                                                               
specific set  of facts  and trying  to come up  with a  rule that                                                               
addresses all the  cases is hard to understand.  This reduces the                                                               
facts to answer that.                                                                                                           
                                                                                                                                
CHAIR SEEKINS asked  if they were plowing new ground  here as far                                                               
as restatement of torts and other state laws.                                                                                   
                                                                                                                                
MR. FORD  replied Alaska  has some  case law that  is out  of the                                                               
main stream and  by adopting the restatement of  torts; we're not                                                               
setting new law.                                                                                                                
                                                                                                                                
CHAIR SEEKINS  thought that  they were  bringing Alaska  into the                                                               
main stream  of law  with this  bill and wanted  to know  if they                                                               
were eviscerating anyone's rights.                                                                                              
                                                                                                                                
MR.  FORD replied  this  bill does  not  set out  in  a bold  new                                                               
direction.                                                                                                                      
                                                                                                                                
SENATOR  OGAN asked  how many  other states  deal with  vicarious                                                               
liability.                                                                                                                      
                                                                                                                                
MR. FORD said he didn't know off  hand, but he would find out. He                                                               
understands that 25 - 26  states do follow the restatements point                                                               
on this issue.                                                                                                                  
                                                                                                                                
REPRESENTATIVE  SAMUELS commented  this  doesn't  deal with  just                                                               
strict liability  for compensatory damages,  but if a  company is                                                               
found directly liable,  you're still on the  hook for everything,                                                               
including punitive damages. This  is only for vicarious liability                                                               
where you're not found directly liable.                                                                                         
                                                                                                                                
SENATOR THERRIAULT  asked if  there had been  an attempt  to make                                                               
the employer  strictly liable  and the court  made a  ruling that                                                               
they are not.                                                                                                                   
                                                                                                                                
REPRESENTATIVE SAMUELS nodded yes.                                                                                              
                                                                                                                                
SENATOR   FRENCH  thanked   Representative  Samuels   for  saying                                                               
"vicarious liability" as that is the correct term.                                                                              
                                                                                                                                
SENATOR OGAN  said he was worried  that this change in  law would                                                               
cause an  employer to  be less than  judicious about  making sure                                                               
their  employees   are  behaving   within  the  scope   of  their                                                               
responsibilities.                                                                                                               
                                                                                                                                
CHAIR  SEEKINS  pointed  out  that  it  only  concerned  punitive                                                               
damages for an employee outside  the scope of employment. He said                                                               
he would hold the bill as a courtesy to Senator Ogan.                                                                           
                                                                                                                                
                   HB  49-EXPAND DNA DATABASE                                                                               
                                                                                                                                
CHAIR SEEKINS  announced SCS CSHB  49(JUD), version \S, to  be up                                                               
for consideration.                                                                                                              
                                                                                                                                
REPRESENTATIVE ANDERSON, sponsor  of HB 49, said  there were some                                                               
concerns  about  what   law  enforcement  can  use   DNA  for  in                                                               
investigations  and  about  destruction   of  the  samples  after                                                               
exoneration or once someone has  been convicted and how those are                                                               
retained. He  heard discussions about the  latitude of inclusions                                                               
of all felonies and misdemeanors.                                                                                               
                                                                                                                                
SENATOR OGAN  said several years  ago, burglary was added  to the                                                               
list  of offenses  for which  DNA could  be collected.  This bill                                                               
would require DNA  samples from a couple of high  school kids and                                                               
lots  of  new   offenses.  DNA  is  not   like  fingerprints;  it                                                               
identifies  your  genetic  makeup  and  propensity  for  you  and                                                               
members of your family for  having certain diseases. He wanted to                                                               
know why  it was important to  expand this capability to  so many                                                               
other crimes including some misdemeanors.                                                                                       
                                                                                                                                
MS. ANNIE CARPENETI, Department of  Law, supported HB 49 and said                                                               
they dealt with  some of the privacy issues  Senator Ellis raised                                                               
yesterday.   Mr.  Chris   Beheim,   Director,  Scientific   Crime                                                               
Detection  Laboratory,  Department  of Public  Safety,  testified                                                               
that he  has data that  shows how  having the information  in the                                                               
bank from crimes you would  not expect are necessarily related to                                                               
one another really helps solve  serious crimes that are committed                                                               
after the initial one.                                                                                                          
                                                                                                                                
MS. CARPENETI said the privacy  concerns were good ones, but this                                                               
bill answers  those concerns. It's  a limited purpose DNA  bank -                                                               
only  for criminal  investigation and  identification. It's  also                                                               
limited to  convicted offenders  and volunteers.  The information                                                               
in the  data bank and  the samples are  confidential and it  is a                                                               
Class C felony  to misuse the samples or the  data resulting from                                                               
them.                                                                                                                           
                                                                                                                                
She  recapped  that  the  crime  lab tests  13  sites  on  a  DNA                                                               
molecule.  It's identification  information that  doesn't provide                                                               
information    about   propensity    for   disease    or   family                                                               
characteristics.  It's  true  that  the samples  are  saved,  but                                                               
that's to  be able to double-check  if a match is  made. The only                                                               
other time they  would be used would be if  another serious crime                                                               
were committed where blood or semen is left.                                                                                    
                                                                                                                                
SENATOR OGAN said  DNA is collected from many  different things -                                                               
urine, saliva  and hair  to mention  a few.  His concern  is that                                                               
this  is good  as  long as  the government  is  good and  doesn't                                                               
violate the  Bill of Rights.  But, there  are people in  jail now                                                               
who have not  had due process and  no one has access  to who they                                                               
are; it's  not public  record and  the trials  are in  secret. He                                                               
carried his concern further saying  DNA information could be very                                                               
dangerous to  a person like  Saddam Hussein who might  track down                                                               
families of people he didn't like.                                                                                              
                                                                                                                                
SENATOR FRENCH said that no one  would have their DNA taken until                                                               
a jury has said they are guilty  of a felony or they plead to it.                                                               
So, he felt  there was fairly significant protection  in the bill                                                               
for collection of  DNA. Statistics from Mr.  Beheim indicate that                                                               
if you  take DNA from  people convicted  of just drug  crimes, of                                                               
the  next crimes  solved,  18  percent are  sex  offenses and  23                                                               
percent  are homicides.  So, people  who have  a drug  conviction                                                               
frequently do a different and more  serious type of crime and the                                                               
same for  forgery. He felt  that just taking samples  from felony                                                               
criminals is a good balance.                                                                                                    
                                                                                                                                
On page 3, line  27, the bill allows DNA analysis  to be used for                                                               
law  enforcement purposes  including criminal  investigations and                                                               
prosecutions and  he thought  deleting "law  enforcement purposes                                                               
including" would give some people  comfort that you wouldn't have                                                               
renegade usage of the DNA.                                                                                                      
                                                                                                                                
He added that this  bill allows DNA to be taken  from a body part                                                               
at a crime scene or something like that.                                                                                        
                                                                                                                                
CHAIR SEEKINS said they were  thinking about inserting "deceased"                                                               
in front of "unidentified person".                                                                                              
                                                                                                                                
SENATOR FRENCH approved of that.                                                                                                
                                                                                                                                
SENATOR  OGAN   supported  deleting  "law   enforcement  purposes                                                               
including" and was  concerned also with language on  page 3, line                                                               
7, that said "or tissue sample  from a crime scene as evidence or                                                               
from an  unidentified person  or body part".  The "or"  creates a                                                               
separate category.                                                                                                              
                                                                                                                                
MS.   CARPENETI   suggested   saying  either   "law   enforcement                                                               
identification purposes  for identifying people and  body parts",                                                               
because  that's  not  necessarily   included  in  a  crime  scene                                                               
investigation.                                                                                                                  
                                                                                                                                
SENATOR  FRENCH  felt  that  identifying  a  lost  person  was  a                                                               
separate issue from this bill.                                                                                                  
                                                                                                                                
MS. CARPENETI said on page 3,  line 7 they could delete "and" and                                                               
on  line  8, delete  "person  or  body  part" and  insert  "human                                                               
remains".                                                                                                                       
                                                                                                                                
SENATOR THERRIAULT moved to adopt  that as amendment 1. There was                                                               
no objection and it was so ordered.                                                                                             
                                                                                                                                
SENATOR OGAN motioned to delete from page 3, line 27...                                                                         
                                                                                                                                
TAPE 03-42, SIDE A                                                                                                            
                                                                                                                              
"law enforcement purposes including".                                                                                           
                                                                                                                                
MS.  CARPENETI  said  she   was  concerned  about  identification                                                               
purposes. There was general discussion of wording.                                                                              
                                                                                                                                
CHAIR  SEEKINS  asked  if  there  was an  objection  to  doing  a                                                               
conceptual  amendment to  use  DNA  for identifying  unidentified                                                               
human  remains.  There  was  no objection  and  amendment  2  was                                                               
adopted.                                                                                                                        
                                                                                                                                
MS. CARPENETI suggested adding "or  child kidnapper" - after "sex                                                               
offender" on page  2, line 14 because that is  a term the federal                                                               
government uses.                                                                                                                
                                                                                                                                
SENATOR THERRIAULT  motioned adopting that as  amendment 3. There                                                               
was no objection and it was so ordered.                                                                                         
                                                                                                                                
SENATOR OGAN  said he understood  the connection, but  he thought                                                               
it would  be a  better bill  if DNA  were collected  for felonies                                                               
only. He said  he was willing to make some  sacrifices to live in                                                               
a  free society  where he  could keep  and bear  arms and  he was                                                               
willing  to  take   the  risk  and  delete   DNA  collection  for                                                               
misdemeanors.  He announced  his support  for the  bill would  be                                                               
contingent on that issue.                                                                                                       
                                                                                                                                
SENATOR THERRIAULT moved to pass  SCS CSHB 49(JUD) from committee                                                               
with individual recommendations and the attached fiscal notes.                                                                  
                                                                                                                                
SENATOR OGAN objected. Chair Seekins  called for a roll call vote                                                               
and  the  motion  passed with  Senators  French,  Therriault  and                                                               
Seekins voting yeah and Senator Ogan voting nay.                                                                                
                                                                                                                                
          SB 175-LIABILITY:RECREATIONAL ACTIVITY/BOATS                                                                      
                                                                                                                                
CHAIR   SEEKINS   announced   CSSB   175(JUD)  to   be   up   for                                                               
consideration. He noted that bungee  jumping and parasailing were                                                               
now in the bill.                                                                                                                
                                                                                                                                
MR. MIKE  WINDRED, Alaska Travel Industry  Association and Alaska                                                               
Travel Adventures, supported  SB 175. He said he  was speaking on                                                               
behalf of the industry and one  of the larger companies. About 90                                                               
percent  of the  companies in  the  industry have  five or  fewer                                                               
employees,  which means  they have  much less  ability to  absorb                                                               
increases  in  insurance  costs.  As nuisance  suits  go  up  and                                                               
insurance  rates climb  (theirs went  from 10  percent of  pretax                                                               
profits to 13  percent of pretax profits), it means  that most of                                                               
their employees won't get a  substantial pay raise. Most of their                                                               
company costs  are fairly  fixed and  this bill  would definitely                                                               
help  them  give their  employees  some  of  the money  they  had                                                               
planned on  getting -  for profit sharing  and retirement  and to                                                               
pay raises.                                                                                                                     
                                                                                                                                
SENATOR OGAN  asked if they  provide those kinds  of recreational                                                               
services.                                                                                                                       
                                                                                                                                
MR.  WINDRED replied  they do  everything -  from lake  canoeing,                                                               
hiking tours, the salmon bake, etc.                                                                                             
                                                                                                                                
SENATOR  OGAN asked  if he  thinks he  has any  responsibility to                                                               
inform people  who are using  their services that they  are using                                                               
them at their own risk if this law is passed.                                                                                   
                                                                                                                                
MR. WINDRED replied yes, they  do have a responsibility to inform                                                               
participants of the inherent risks  associated with the activity.                                                               
They have people  sign a sheet of paper saying  they are aware of                                                               
the risks and keep them for quite a while.                                                                                      
                                                                                                                                
SENATOR OGAN said  those sheets of paper are more  like a waiver,                                                               
which  is  more like  a  psychological  contract than  a  binding                                                               
contract, because at the end of the day, a person can still sue.                                                                
                                                                                                                                
MR. WINDRED replied  their sheets are not waivers;  they are risk                                                               
assumption  sheets. They  explain  both verbally  and in  writing                                                               
what the inherent  risks are for that  activity. They acknowledge                                                               
what those risks  are and have the opportunity not  to go at that                                                               
point. They are not waiving any rights to be able to sue.                                                                       
                                                                                                                                
CHAIR SEEKINS said he thought  this bill limited any liability of                                                               
the  providers of  the sports  events to  negligence that  is not                                                               
associated with the inherent risk of the activity.                                                                              
                                                                                                                                
MR.  FORD said  there  is a  provision on  page  3, (c)(1),  that                                                               
specifies negligence  of a  provider that was  not the  result of                                                               
the inherent risk.                                                                                                              
                                                                                                                                
SENATOR  OGAN  asked  if  it  was an  inherent  risk  if  someone                                                               
incorrectly  instructed you  to put  a  piton in  wrong for  rock                                                               
climbing.                                                                                                                       
                                                                                                                                
MR. FORD  responded that is one  of the key issues.  Opinions can                                                               
differ on  what would be an  inherent risk. The court  or another                                                               
reasonable person could agree with him or not.                                                                                  
                                                                                                                                
     This kind of  legislation is hard to  craft because the                                                                    
     rules we have occur in  real fact situations where real                                                                    
     people  exist.... but,  to  come up  with  a rule  that                                                                    
     applies to  all situations,  you run  into what  I call                                                                    
     the generic language...                                                                                                    
                                                                                                                                
SENATOR THERRIAULT asked  if language on page 2,  line 29, saying                                                               
that  a person  assumes inherent  risk in  a sport  or recreation                                                               
activity whether those risks are known or unknown is in there.                                                                  
                                                                                                                                
MR. FORD  replied that he  thought they  were trying to  say they                                                               
are  not going  to  depend on  the knowledge  of  the person  who                                                               
participates.  This was  not his  language  and he  was a  little                                                               
confused about its  meaning. He felt that an  inherent risk would                                                               
have to be known by the participant.                                                                                            
                                                                                                                                
SENATOR THERRIAULT asked where the language came from.                                                                          
                                                                                                                                
MR. FORD said it  came from a woman in Anchorage  and she came up                                                               
with a rewrite of the original bill.                                                                                            
                                                                                                                                
MS.  LINDA ANDERSON,  Alaska  Travel  Industry Association,  said                                                               
this language came from an attorney  in Anchorage who has tried a                                                               
number of these cases.                                                                                                          
                                                                                                                                
CHAIR SEEKINS said there might  some inherent risks someone might                                                               
not know  about and  they were  trying to get  to what  is common                                                               
sense, although that differs from one person to another.                                                                        
                                                                                                                                
SENATOR  THERRIAULT asked  Mr. Ford  what would  be lost  if that                                                               
sentence fragment were deleted.                                                                                                 
                                                                                                                                
MR.  FORD replied  he didn't  think it  would greatly  affect the                                                               
bill. It raises  the issue of whether those risks  are unknown or                                                               
known,  but the  question is  to whom.  He assumed  it meant  the                                                               
person who  participates, but he  felt if  it was unknown  to the                                                               
person, how could it be inherent.                                                                                               
                                                                                                                                
SENATOR  THERRIAULT  moved on  page  2,  line  29, to  delete  ",                                                               
whether risks are known or  unknown,". There was no objection and                                                               
it was so ordered.                                                                                                              
                                                                                                                                
SENATOR OGAN  motioned to  pass CSSB  175(JUD), version  \S, from                                                               
committee with attached zero fiscal  note and asked for unanimous                                                               
consent. There was no objection and it was so ordered.                                                                          
                                                                                                                                
CHAIR SEEKINS adjourned the meeting at 10:15 p.m.                                                                               

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