Legislature(2001 - 2002)
04/24/2002 01:44 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY COMMITTEE
April 24, 2002
1:44 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Dave Donley, Vice Chair
Senator John Cowdery
MEMBERS ABSENT
Senator Gene Therriault
Senator Johnny Ellis
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 281(JUD)
"An Act relating to civil liability for providing alcoholic
beverages to a person under 21 years of age; and providing for an
effective date."
MOVED CSHB 281(JUD) OUT OF COMMITTEE
SENATE BILL NO. 309
"An Act relating to actions to quiet title to, eject a person
from, or recover real property or the possession of it, and to
acquisition of real property by adverse possession; and providing
for an effective date."
HEARD AND HELD
SENATE CS FOR HOUSE BILL NO. 405(JUD)
"An Act relating to the prosecution of criminal offenses
committed on or against aircraft owned or operated by the state
or ferries and other watercraft owned or operated by the state;
and providing for an effective date."
MOVED SCS HB 405(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 375 am
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
MOVED SCS HB 375(JUD) OUT OF COMMITTEE
SENATE BILL NO. 159
"An Act relating to retention elections for judges of the court
of appeals."
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
HB 281 - See Labor and Commerce minutes dated 3/21/02.
SB 309 - See Labor and Commerce minutes dated 3/5/02 and 4/11/02.
HB 405 - See Transportation minutes dated 4/9/02.
HB 375 - See Judiciary minutes dated 4/15/02.
SB 159 - See State Affairs minutes dated 5/05/01.
WITNESS REGISTER
Representative Kevin Meyers
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 281
Cindy Cashen
Mothers Against Drunk Driving
Juneau, AK
POSITION STATEMENT: Supports HB 281
Lindy Stoops
Youth in Action
No address provided
Juneau, AK
POSITION STATEMENT: Supports HB 281
Michael Keggy
Youth in Action
No address provided
Juneau, AK
POSITION STATEMENT: Supports HB 281
Anne Carpeneti
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions about HB 281
Pam Finley
Legislative Affairs Agency
Legislative Legal and Research
Services
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Explained the provisions of HB 375
Mr. Jon Tillinghast
Simpson, Tillinghast, Sorenson and Longenbaugh
One Sealaska Plaza
Juneau, AK
POSITION STATEMENT: Supports SB 309, particularly Section 1
Mr. Russell Dick
Natural Resource Manager
Sealaska Corporation
One Sealaska Plaza
Juneau, AK
POSITION STATEMENT: Supports SB 309, particularly Section 1
Mr. Jim Cantor
Assistant Attorney General
Department of Law
th
1031 W 4 Ave., Suite 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Stated that DOTPF opposes SB 309 and
suggested including a 15 year statute of limitations
ACTION NARRATIVE
TAPE 02-21, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee
meeting to order at 1:44 p.m. Senators Donley, Cowdery, and
Chair Taylor were present. The committee took up HB 281.
HB 281-CIVIL LIABILITY FOR PROVIDING ALCOHOL
REPRESENTATIVE KEVIN MEYERS, sponsor of HB 281, explained that
under HB 281 an adult who knowingly furnishes alcohol to a person
under age 21 may be held civilly liable for the results and
damages. Under current statute, only those with a liquor license
can be held civilly liable. This bill holds the general public to
a standard similar to that for licensees. The key word in BHBHB
281 is "knowingly." The intent of this bill is to go after those
adults who sit in parking lots of liquor stores on weekends to
purchase alcohol for minors and get paid by the minors or the
adult who willingly purchases alcohol for minors. HB 281 will do
three things: it will deter adults from furnishing alcohol to
minors; it will reduce underage access to alcohol; and it
provides recourse to victims' families. He told members that the
main reason he is going forward with this legislation is a
tragedy that occurred last July in which three teenagers and a
police officer died. He said the bill passed the House
unanimously. He asked committee members to support the bill.
SENATOR DONLEY pointed out the only fiscal note was prepared by
the House Labor and Commerce Committee and asked if any of the
departments have prepared a fiscal note for the bill.
REPRESENTATIVE MEYER said there were no other fiscal notes and
that he does not anticipate any costs to the state.
CHAIRMAN TAYLOR commented that he has seen about four or five
bills come out of the House Judiciary Committee that would
provide immunity from negligent conduct and the damages resulting
from that conduct for various groups. He asked Representative
Meyer, "You realize that these are criminal acts that we're
talking about?"
REPRESENTATIVE MEYER answered affirmatively.
CHAIRMAN TAYLOR asked if there is some reason why the same
standards in the other bills, i.e. gross negligence, reckless,
intentional, are not being used in HB 281.
REPRESENTATIVE MEYER asked if Chairman Taylor was asking why the
bill contains a knowingly standard versus criminal negligence.
CHAIRMAN TAYLOR said HB 281 contains a knowingly standard but
only applies to private persons, however when it comes to a
business, the standard is strict liability.
REPRESENTATIVE MEYER said that is correct and that the committee
wanted the standard to be higher for the general public versus
license holders. Committee members had a lot of discussion about
the issue of whether an adult would be held liable if a minor got
a glass of champagne at a wedding reception, for example. He said
the key word is "knowingly," which is hard to prove so it would
have to be obvious that the adult knew that the minor was
underage. He said his intention is to target adults who wait in
parking lots for the specific purpose of purchasing alcohol for
minors for a fee so the standard is a little higher than it would
be for a package store.
CHAIRMAN TAYLOR said that requiring a knowingly standard will
make it difficult to prove. He then took public testimony.
MS. CINDY CASHEN, representing Mothers Against Drunk Driving,
said there are three types of people who provide alcohol to
minors: chronic alcoholics who purchase alcohol in exchange for
money or alcohol of their own; friends or family; and sexual
predators whose goal is to cause impaired judgment in a teenager.
The last two are more common than many realize. These people need
to be aggressively discouraged through laws such as HB 281.
Contributing to a minor today results in a small fine with
perhaps some jail time. HB 281 would make selling to minors a big
deal. HB 281 sends the message to youth that they are cared for
and that the state will pursue someone who was the root cause of
a senseless tragedy.
MS. CASHEN said it makes no sense for Alaska to prevent
restorative justice for those who suffer severe and tragic
consequences from the result of those persons who supply alcohol
to minors. MADD believes Alaskans want this law and needs this
law for our children if not for ourselves.
MS. LINDY STOOPS, representing Youth in Action (a MADD-based
program), said many people do not realize the consequences of
providing alcohol to people under the age of 21. She believes it
is very easy for minors to get alcohol in Juneau and that this
bill will make people realize that the consequences of buying
alcohol for minors are serious.
MR. MICHAEL KEGGY, representing Youth in Action, said he has seen
a lot of people who drink and drive in Juneau. He has experienced
incidences with alcohol, some in his family, that have affected
his life and the lives of those around him.
There being no further testimony, SENATOR DONLEY moved CSHB
281(JUD) from committee with individual recommendations.
CHAIRMAN TAYLOR announced that without objection, the motion
carried. He then noted the committee would take up HB 405.
HB 405-CRIMES ON OR AGAINST STATE VESSELS/PLANES
CHAIRMAN TAYLOR informed members that he had a committee
substitute prepared as well as a concurrent resolution to address
the title change.
SENATOR DONLEY asked Representative Meyer if he approves of the
committee substitute.
REPRESENTATIVE MEYER said he does.
SENATOR DONLEY moved to adopt Version C (Luckhaupt 4/16/02) as
the Senate Judiciary committee substitute to HB 405.
CHAIRMAN TAYLOR announced that without objection, Version C was
before the committee.
REPRESENTATIVE MEYER, sponsor of HB 405, informed members that
the only change made to Version C is that state-owned aircraft
was added. He explained that HB 405 gives the state jurisdiction
over state-owned watercraft and aircraft traveling outside state
waters. He introduced this legislation because recently an Alaska
Superior Court judge dismissed a prosecution for sexual assault
that occurred on a state-owned ferry in Canadian waters. He
stated:
Last year a young woman, 16 years old, was sexually
assaulted when she was on the Alaska ferry, Matanuska,
en route from Seattle to Ketchikan. The ferry was in
Canadian waters at the time of the assault. The
district attorney in Ketchikan presented the case to
the Grand Jury there, and the Grand Jury returned an
indictment for one count of sexual assault in the first
degree and one count of sexual assault in the second
degree, and four counts of misdemeanor assault.
Unfortunately the court found that there was no
statutory authority for the State of Alaska to
prosecute the crime, even though the victim was an
Alaskan and it happened on an Alaskan owned state
ferry. Under federal maritime law, the United States
government has jurisdiction over crimes that occur on
U.S. vessels in Canadian waters but the dismissal by
the state court is of concern because the crime is
unlikely to be prosecuted by the federal government and
certainly not by the Canadian government. The federal
government doesn't usually pursue smaller crimes, even
though sexual assault is not a smaller crimes, and the
Canadian government has very little interest in
pursuing a crime that occurred on the Alaska owned
ferry system to a U.S. citizen. So, I believe it's
prudent that we pass this law that specifically gives
the State of Alaska the power to prosecute cases like
this that occur on our state-owned watercraft and now
aircraft.
This problem is not going to go away, Mr. Chairman.
Just as recently as in December, we had an incident
where a passenger attacked two crewmembers with a
broken vodka bottle and caused some injury to the
crewmembers. The passenger has since filed a motion to
dismiss based upon the dismissal of this case with the
sexual assault. Also this occurred on the state ferry
system in Canadian waters. This bill is a simple bill
but it provides a solution to a very serious problem.
The bottom line, to summarize what we're trying to do
here, is that if the Canadian government does not want
to prosecute criminal activity on our state-owned
vessels, and the federal government doesn't have any
interest, then the state should have the right and the
option to do so and this bill will allow that. Thank
you.
SENATOR DONLEY said that he supports this legislation but is
flabbergasted because he assumed the federal government did not
step in and prosecute that case.
MS. ANNE CARPENETI, representing the Criminal Division of the
Department of Law, said it is her understanding that the United
States Attorney's Office is reviewing the case. No charges have
been filed yet, to her knowledge.
SENATOR DONLEY asked what the time frame is.
MS. CARPENETI said she is not familiar with the federal statute
of limitations but she would find out.
SENATOR DONLEY said he thinks it's dreadful that this happened on
a state ferry and no federal decision about whether to prosecute
has been made, given there was a grand jury indictment under
state law.
REPRESENTATIVE MEYER said he has written letters to Alaska's
congressional delegation about the matter.
MS. CARPENETI said the federal statutes are different and she is
not familiar with federal screening rules.
CHAIRMAN TAYLOR said the bill was amended to include state-owned
aircraft, but he is concerned that by limiting the bill to only
those aircraft owned or operated by the state, the question
remains open of who has jurisdiction and who will prosecute on an
aircraft owned or operated by the state flying over Canadian air
space. He said he would like Alaska's long-arm jurisdiction to
be as long as possible for the protection of Alaska's citizens.
MS. CARPENETI commented that the bill was originally drafted to
address a particular problem on a state ferry. She explained that
traditionally, criminal jurisdiction of a state is based on
territorial considerations. The theory behind HB 405 is that an
Alaska ferry or aircraft is "like a little piece of Alaska going
through Canadian waters." She noted if the state expands
jurisdiction too far, it is liable to be subject to a due process
claim and dismissal so the theory was to address the current
problem and consider how to handle future situations under due
process considerations to expand the program.
SENATOR DONLEY moved SCS CSHB 405(JUD) from committee with
individual recommendations, as well as its accompanying
concurrent resolution.
CHAIRMAN TAYLOR announced that without objection, SCS CSHB
405(JUD) moved from committee with its accompanying resolution.
SENATOR DONLEY asked Representative Meyer for a copy of the
correspondence he sent on this subject and then moved that the
Senate Judiciary Committee send a letter to the U.S. Attorney's
Office expressing its concern and support for examining this case
in an expedited manner.
CHAIRMAN TAYLOR announced that with no objection, Representative
Meyer would work with staff to draft such a letter.
REPRESENTATIVE MEYER said he would be willing to do so.
CSHB 375(JUD)-REVISOR'S BILL
SENATOR DONLEY reminded members that the committee held a hearing
on CSHB 375(JUD) the previous week.
MS. PAMELA FINLEY, Revisor of Statutes, Alaska State Legislature,
said she would like the committee to focus on Section 2 because
it is misleading in that it appears to change the statute of
limitations. She explained that last year a floor amendment
changed the statute of limitations but did not change this
related piece. Section 2 is an attempt to amend the action that
was taken via the floor amendment.
MS. FINLEY said before the floor amendment was adopted, the
statute of limitations for sexual abuse and sexual assault was
defined in terms of specific criminal statutes. The statute of
limitations was three years for civil actions. The floor
amendment repealed and reenacted it so there is no statute of
limitations for felony sexual abuse or sexual assault and it's
not defined in regard to any criminal statutes. As a result, the
question then becomes what applies to misdemeanor sexual abuse
and sexual assault offenses. The statute of limitations was three
years but now it is not covered at all. Because no special
statute of limitations exists, she understood that to mean the
standard two-year tort statute of limitations applies. If the
crime occurs when the victim is a minor, the statute of
limitations does not start to run until the victim hits majority.
Section 2 is a subset of that so that if the victim is under 16,
special provisions apply, the main one being the discovery
provision on page 2, lines 9-16.
MS. FINLEY said when this statute was originally written, the
statute of limitations was three years. Then when it changed to
two years for misdemeanors and no limitation for felonies, this
was not amended.
SENATOR DONLEY expressed confusion and said it didn't seem there
was any affirmative act of the Legislature to change the statute
of limitations to two years, it's just that the issue was ignored
so that the existing presumption of two years for everything else
then applied.
MS. FINLEY said the floor amendment did not specify that the
statute of limitations for misdemeanors would become two years
but that is what happened.
SENATOR DONLEY said he believes a strong case could be made to do
just the opposite of what CSHB 375(JUD) does, and that is to say
that the intent of the Legislature was not to shorten the statute
of limitations for misdemeanor sexual abuse offenses, but to
leave it as it was. He noted the revisor's bill could actually
incorporate that as the correct intent of the Legislature.
MS. FINLEY said to do that, the underlying statute of limitations
would have to be rewritten. She said she is reluctant to do that
because the sponsor of that floor amendment showed no inclination
to do that and the bill had been through the House Judiciary
Committee.
SENATOR DONLEY asked who sponsored the floor amendment.
MS. FINLEY answered Representative Berkowitz. She said she put
Section 2 in because she felt it was her duty to deal with the
issue but Section 2 could be removed from the bill.
SENATOR DONLEY said he would prefer to take Section 2 out of the
bill.
CHAIRMAN TAYLOR said that taking it out of the bill will leave
the statute of limitations at three years. However, it could be
argued that it could be two years because it is a gray area.
MS. FINLEY said she is not sure what a court would do. She
assumed if the victim is not 16 or under, the court would have to
conclude that the statute of limitations is two years for a
misdemeanor sexual assault because the issue is basically when
the clock starts running.
CHAIRMAN TAYLOR asked if this is for civil purposes.
MS. FINLEY said it is. She said she would be perfectly happy to
remove Section 2 but hopes someone will deal with the question
because it is problematic.
SENATOR DONLEY asked Ms. Finley to give him a copy of the
original floor amendment and information describing the
inconsistency so that he could work on it.
MS. FINLEY agreed.
SENATOR DONLEY moved to delete Section 2 of CSHB 375(JUD) because
he does not support shortening the statute of limitations for
these sorts of crimes.
CHAIRMAN TAYLOR announced that with no objection, the motion
carried. He then thanked Ms. Finley for her great work as she
does a high quality job that often goes unnoticed.
SENATOR DONLEY agreed and said Ms. Finley is one of the best
attorneys in the Division of Legal Services.
There being no further questions, SENATOR DONLEY moved SCS CSHB
275(JUD) from committee with individual recommendations.
CHAIRMAN TAYLOR announced that with no objection, SCS CSHB
375(JUD) will move to the next committee of referral as soon as
it is prepared.
SB 309-ADVERSE POSSESSION
SENATOR THERRIAULT said he agreed to introduce SB 309 but it
pertains to an area of statute that he has not dealt with before.
He noted the committee discussion to this point has raised some
interesting public policy calls. He said he is not an expert in
this area but others are here to testify on the legislation.
MR. RUSSELL DICK, resource manager for the Sealaska Corporation,
introduced Mr. John Tillinghast, legal counsel for Sealaska
Corporation and said they would address any technical/legal
issues with this bill.
MR. DICK said that Sealaska is very supportive of SB 309, which
will restrict claims of adverse possession against private
property. Sealaska Corporation is the regional corporation under
the Alaska Native Claims Settlement Act and the largest private
property landowner in Southeast Alaska. Alaska Native
Corporations are the largest private landowners in Alaska in
general. Sealaska has talked with other regional corporations who
indicated their support for SB 309 as well.
MR. DICK explained that lands conveyed to the Native corporations
serve two fundamental purposes: to settle Alaska Natives
aboriginal claims and to meet the social, cultural and economic
needs of Natives, hence these lands are the foundation of Native
people's existence. Congress imposed a prohibition of adverse
possession claims as long as these lands remained in an
undeveloped state. Sealaska felt that was probably good policy
when ANCSA was first created, but many did not recognize how
expansive these land bases would become in the future. ANCSA
didn't consider the degree of development on these lands nor did
it consider the burden that it places on having to actively
police these large, remote landholdings. Sealaska alone has
290,000 acres of land throughout Southeast Alaska with an
entitlement expected to reach upwards of 350,000 acres. The
burden of having to police those lands doesn't serve any public
purpose and seems to Sealaska to be an economic waste. In
addition, Sealaska has a real estate department to purchase non-
ANCSA lands. Those lands do not maintain the same prohibition of
adverse possession claims so Sealaska must deal with that as
well.
MR. DICK said that Alaska has always seemed to respect private
property rights, as there is so little private property in
Alaska: the doctrine of adverse possession seems inconsistent
with that recognition. The state has made itself immune to
adverse possession claims due to the expansive nature of its
lands and the economic burden associated with having to police
them. Sealaska, as a private property owner, is asking for those
same protections.
CHAIRMAN TAYLOR asked if any state allows adverse possession of
state land.
MR. JON TILLINGHAST said to the best of his knowledge, every
state prohibits its land from being taken by adverse possession,
as does the federal government.
CHAIRMAN TAYLOR commented, "And that is because every state has
either the Fifth Amendment that the federal government has or has
an amendment identical to it that the state cannot take land -
the king cannot take land from its citizens without a payment of
just compensation. Right?"
MR. TILLINGHAST said he understood the question to be whether any
state allows land to be taken from the king. They do not. He
thought the policy justification for that is that the state and
federal government own large parcels of remote land and it would
be too much of a burden on the public fist to require the
government to patrol its own lands.
CHAIRMAN TAYLOR said it is also part of the Fifth Amendment that
the king is not allowed to take by adverse possession either. The
king must take land by eminent domain and pay full, fair and true
value and use a formal process. He asked why the state should
afford the same privilege to a private landowner.
MR. TILLINGHAST responded:
Two answers. First, we are also firm believers in state
and private land being treated equally and if you were
going to elevate the one over another, frankly my
ideology suggests that you elevate private land over
public but we're not asking for that, we're just asking
for equal treatment. My understanding is that state
does take land from private people by adverse
possession.
CHAIRMAN TAYLOR said he just learned that the other day and he
does not believe the state or a city or borough should be able to
"take private land by road grader." He explained:
They're taking a ten-foot wide easement and every year
when they grade the road they move a little further out
in the guy's yard. The next thing you know the street's
25 feet wide. They never purchased it. They never
condemned it and took it. They never paid a dime for it
and here the city or the state is enforcing some right
of adverse possession through prescription, some sort
of prescriptive right, because 'well we've used it all
of these years so now it's ours.' I think that is
totally backwards and we should not tolerate it.
MR. TILLINGHAST replied that during the earlier hearings on this
bill, the Alaska Department of Transportation and Public
Facilities (DOTPF) opposed it because it wanted to preserve its
right to take people's private property without paying for it.
Sealaska was shocked.
CHAIRMAN TAYLOR said he wanted that on the record because he was
given that information yesterday and he too was stunned. That is
a major shift in real property law in this state and he is
thinking about drafting legislation to address the problem.
MR. TILLINGHAST remarked that SB 309 will prevent anyone from
doing that. He said the only justification for the doctrine of
adverse possession in Alaska Supreme Court cases is the theory
that if you have an idle capitalist doing nothing with vacant
land, and an industrious worker is willing to squat on it and
grow corn, it is good public policy to let the squatter take the
land. He said in his mind, it is none of the state's business
what a private property owner does with his property. He said he
does not believe any other state has done what SB 309 proposes to
do but Alaska has always been proud that it does not do things
the same way as other states.
MR. TILLINGHAST asserted that ANCSA corporations have enormous
holdings in remote places and the cost of policing those lands to
make sure that squatters are not living on them is huge. It might
be a cost worth bearing if it served a valid public purpose but
it does not. Squatters should not be rewarded by the state for
living on private land. He said if the state wants to send a
clear signal that it respects private property rights, it should
enact SB 309.
CHAIRMAN TAYLOR recounted a case he had that went to the Supreme
Court but was dismissed. He represented a couple that owned a
small house in Wrangell for over 50 years. The couple had loaned
money to their nephew to buy an adjoining piece of property. The
state came along and widened Evergreen Ave., which they lived on.
The state did a survey for right-of-way purposes and found the
lines for all of the lots on the street to be incorrect. The
nephew's lot was a pie shaped piece that took in the couple's
sidewalk, garden and a corner of their house. The neighbors had a
new survey done of the whole neighborhood and "each guy handed
the other guy a quit claim deed" so that they owned their
original pieces of property, except the nephew.
TAPE 02-21, SIDE B
CHAIRMAN TAYLOR then explained the nephew insisted the couple pay
him for the corner of their property at close to the amount the
couple had loaned him. If SB 309 had been enacted, the couple
would have to pay to the nephew, from the day they took
possession, full market value at the current appraisal plus
interest plus the cost of an appraisal. In addition, the couple
would have to pay in a short time frame otherwise ownership would
revert to the nephew. Chairman Taylor said he was able to find
U.S. Forest Service aerial photographs of the land in 1954 and,
coupled with reliable testimony, was able to establish by adverse
possession that the couple had occupied the area of the lot with
the garden.
MR. TILLINGHAST said Chairman Taylor interpreted the legislation
correctly and drew a distinction that the bill itself draws.
Section 1 is the "anti-squatter act," which is aimed at the bad-
faith guy who puts up a shack on land with no legitimate claim or
title. Section 2 involves those situations in which both sides
are proceeding with some good faith, or certainly the adverse
possessor is. The possessor has some claim of title but something
went wrong, such as an erroneous survey. The bill proposes to
keep the doctrine of adverse possession in those instances
because that's where the doctrine does have a legitimate current
use. He suggested in a situation where the adverse possessor is
making a claim under claim of title in which the couple had a
deed but the survey was wrong, the allocation of rents and
payments ought to be discretionary with the court. He noted in
the case Chairman Taylor described, it would be unfair to make
the couple pay.
CHAIRMAN TAYLOR commented that most folks in Wrangell leased
before the 1970s and everything was done on contract of sale,
which was not recorded. He noted that the couple he represented
would not have been able to comply with some of the provisions of
Section 2(a)(1), in which the possessor would need "(C) an
instrument under which the possessor claimed title was recorded
at the time the possessor's claim of title began;".
MR. TILLINGHAST said the intent of SB 309 is to make major
changes to the squatter provision in Section 1. It was not
Sealaska's intent to unduly complicate or change the situations
Chairman Taylor is talking about. He said it may well be that
some of the items in Sections 2 and 3 should be removed and that
it is healthy to take a critical look at the details of Sections
2 and 3 because that has not happened yet. To this point, the
debate has been about Section 1 with the state arguing that it
still wants to take people's land for highways.
CHAIRMAN TAYLOR said he is willing to work with Mr. Tillinghast
on Sections 2 and 3. He noted he has some sympathy for a vast
landowner who must patrol for squatters, but Congress has already
given protection on undeveloped land. He said he owns undeveloped
remote acreage and gets to that property once every year to make
sure no one has put a cabin on it. He believes that is part of
the responsibilities of a diligent landowner. He said he is not
ready to rewrite the property laws on adverse possession yet but
he is willing to look at the other provision. Chairman Taylor
noted that he has hired Mike Wright, an attorney, as committee
staff until the end of the session so Mr. Wright will be
available to provide additional effort in this regard.
SENATOR THERRIAULT commented that his wife had a pro bono case
that was similar to the one Chairman Taylor related so he is
aware that there are instances in which the adverse possession
doctrine has proved useful.
CHAIRMAN TAYLOR asked Jim Cantor to testify.
MR. JIM CANTOR, Assistant Attorney General, Department of Law,
Transportation Section, informed members he was testifying on
behalf of the Department of Transportation and Public Facilities
(DOTPF).
CHAIRMAN TAYLOR noted, for the record, that he discussed this
legislation for an hour the previous day with Assistant Attorney
General Bill Cummings.
MR. CANTOR informed members that DOTPF opposes SB 309 as it
raises two areas of concern. The first is with accommodation
between neighbors, which is more of a problem in rural areas. For
example, a maintenance crew may show up to deal with a drainage
problem and work with the landowner to come up with a solution.
The solution may inadvertently or intentionally involve a pipe
that crosses into another piece of property. Sometimes the
adjoining landowner has given explicit or tacit approval that is
not recorded. Time then passes, the adjoining landowner has moved
on and the new landowner looks at SB 309 and sees a way to
collect money on what was actually done permissively. He noted
there have been many situations where crews in the field work
with landowners and things are done permissively. The current
statute of limitations is 10 years, which would be changed by SB
309, so that a cause of action could exist 30 years later, after
all memory of the arrangement is gone. He noted this situation
primarily arises with drainage issues and driveway linkage
issues.
In regard to Chairman Taylor's comment about the movement of road
right-of-ways, MR. CANTOR pointed out that gravel roads tend to
drift as they are maintained. DOTPF now has a program that local
governments have pushed to put asphalt on gravel roads and those
roads are eventually turned over to the local governments. He
said the initial objection to that program was that all roads
would have to be surveyed. The communities' response was that
they knew the roads were there so they encouraged the state to
put the asphalt on them. Essentially the communities did that
knowing adverse possession claims could be made on the areas
where the road had drifted.
MR. CANTOR noted that SB 309 has no statute of limitations. He
recounted that when he was in law school, he bought a house in
Upstate New York. Before he signed the papers, the lawyers told
him the title had a flaw, that being that a group of investors
bought a large part of the parcel during the Civil War. They
disappeared and no heirs came forward. They assumed the matter
was cleared up by adverse possession by the 1870s. He signed the
papers but, under SB 309, he would have had to worry about record
interests back to the Civil War. Those interests could have been
resurrected. He suggested, on behalf of DOTPF, changing the
statute of limitations to 15 years to give property owners a
little more certainty as to who owns the land.
CHAIRMAN TAYLOR asked Mr. Cantor to forward to his office the
legal theories and precedent cases upon which the state bases its
arguments that it, through inverse condemnation, takes land over
time because a road grader drifts to the outside corner of a road
each time it is graded so that after 15 years the state owns the
property that a private property owner is paying taxes on. He
said Mr. Cummings said some of the judges in this state allow the
state to acquire private property in that way.
MR. CANTOR said he was not versed in the names of those cases but
would look into them and that the theory used in those cases is
the statute of limitations on inverse condemnation.
CHAIRMAN TAYLOR said he is aware that is a positive way for the
state to acquire land at no cost but he does not feel it is
appropriate.
MR. TILLINGHAST said he realizes SB 309 has raised complex
issues, particularly Sections 2 and 3. He asked Chairman Taylor
if the committee would be comfortable allowing Section 1 to move
out of committee so that at least the private landowners of the
state can stop spending money chasing after squatters.
CHAIRMAN TAYLOR replied:
I'm concerned about some of the ways in which the state
itself is using that. We do have properties we have
sold under the state sales. We have now retaken some of
those. There's adverse possession claims within those
too. I just have a general concern about that entire
body of law at this point, Jon, and I'd like to instead
hold the bill, work with you, and work with the state
to see if we can come up with some additional
alternatives. A whole batch of this West was settled by
squatters, most of Oklahoma - they call their football
team the "Sooners" because they got there sooner than
they were supposed to and they squatted on that land.
We used to allow squatters in this state - we called
them homesteaders. Go out and squat on any piece of
land you can and make a house out of it, make a cabin,
clear a little bit of land - if you live there, we'll
give you 160 acres. That's what the federal government
did so I think there's a whole body of law and reasons
why we have something like the adverse possession laws
and I really want to think about this one a little
further before we go forward with it. Thank you very
much Jon, I appreciate it.
SENATOR THERRIAULT said that now that he understands the problems
associated with Sections 2 and 3, he would be agreeable to
dropping those sections, if that is the Chair's desire. He said
knowing that Chairman Taylor is a strong proponent of putting
large amounts of remote land in private ownership, he hopes
Chairman Taylor can see the benefit of Section 1.
CHAIRMAN TAYLOR said he intends to work on Section 1. He then
noted SB 159 was also on today's calendar but Senator Donley
asked that it not be taken up at this time. He then adjourned the
meeting at 2:56 p.m.
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