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