Legislature(2003 - 2004)
04/25/2003 01:10 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 171-SUITS & CLAIMS: MILITARY/FIRE/DEFENSE
CHAIR SEEKINS announced SB 171 to be up for consideration.
MS. GAIL VOIGTLANDER, Assistant Attorney General, said this bill
covers four areas of governmental emergency operations. The
first area is search and rescue. The Alaska State Troopers
conduct about 400 of them each year and they decide when and how
to initiate a search or rescue and often call on the National
Guard and community resources to assist. This bill would provide
immunity from tort lawsuits for state and local government and
their employees when they participate in the rescue activities
(Section 2).
The next topic is about intra-military court claims in response
to an Alaska Supreme Court case, Himsel v. State 2001. In that
case the court departed from the generally held intra-military
tort immunity known as the "Feres Doctrine" that provides that
if you are a member of a military service, you cannot sue other
members of the military service for torts if you are injured. As
an employee, your remedies are: if you are acting under federal
orders, getting federal workers' compensation and other benefits
and, if you are under state orders, getting the state's workers'
compensation benefits.
Most military operations in Alaska are with people carrying out
federal orders. This says you cannot sue in addition to workers'
compensation remedies; it does not change your entitlement to
those benefits nor does it change the amount of benefits
(Sections 4 -6).
Section 3 provides that tort claims are barred against the state
for acts of the organized militia (the Alaska National Guard and
the state militia) unless the governor calls them out under
Title 26.050.70.
The third topic of the bill is civil defense and homeland
security. Civil defense is already provided for in Title 26.
Since the events of 9-11, the civil defense roll has expanded
into homeland security issues, as well. The federal government
has expanded and thrown back to the state governments more
activity in this area than they used to have. This portion of
the bill seeks to continue an immunity that is already in
statute for civil defense activities and extend it to the
homeland security area. It bars tort claims against government
employees and authorizes volunteers if a homeland security
worker sustains damages. It does not affect entitlement to the
extent of homeland security benefits.
The second portion of that area is that it bars third party tort
claims against government employees and authorized volunteers
for damages unless the person who is injured can demonstrate
malice or reckless indifference by clear and convincing
evidence. In existing Title 26 there is an exception that has to
do with one area where immunity is not extended. This bill
tracks that in terms of incorporating exclusion where third
party claims can be asserted in the area of civil defense and
homeland security (sections 7-11).
Finally, the fourth topic is that of fire management and
firefighting activities. Two statutory sections are amended to
bar tort claims by third parties against state, local government
or other firefighting groups and their employees. This is in
response to two Alaska Supreme Court cases that were decided in
2001, Angaboognuk and Bartek cases, which arose out of the
Miller's Reach Fire. The court diverged from ninth circuit
precedent for other western states that provide immunity for
firefighting activities either through common law or through
specific statutes. This portion of the bill would have Alaska in
keeping with the other western states that have wild land fire
exposure. After-the-fact litigation is costly to the state to
defend and costly to the state's resources to have people review
every step that is taken and decision that is made during an
emergency operation. This bill would immunize the state and
local government employees that participate in emergency
activities (sections 12-13).
SENATOR THERRIAULT asked if Section 9 relates to giving
vaccinations.
MS. VOIGTLANDER said yes, adding there are a number of federal
benefits that would provide remedies to people if they receive
vaccinations because of homeland security concerns.
SENATOR OGAN asked if there is a case law record of precedents
that the court deviated from.
MS. VOIGTLANDER replied there are ninth circuit cases that
affected fires out of Oregon, California and Wyoming that
immunized those activities. There are state statutes or case law
in the jurisdictions of California, Kansas, Oklahoma, Montana,
Idaho, Delaware, Florida, Indiana, New York and Kentucky.
SENATOR OGAN asked if the Alaska Supreme Court is supposed to
interpret based on Alaska's constitution and statutes. He asked
if there are any cases in Alaska that have been ruled as having
sovereign immunity and that precedence was departed from.
MS. VOIGTLANDER replied there simply has not been that type of
litigation in the state until the Miller's Reach fire. It's
possible that people were under the impression that there could
not be such a claim made against the state for fire fighting
activity. In the Agnaboognuk case the Alaska Supreme Court
addressed that and simply looked at the existing statute, AS
9.50.250, on waiver of immunity and said they didn't see it in
that statute.
This bill would put into statute that the state had
not waived its immunity for those types of claims and
so the case law would then be overruled by the statute
as an annunciation of a public policy in the state of
Alaska.
SENATOR FRENCH asked if the TSA employees who work at the
airport are considered state homeland security workers.
MS. VOIGTLANDER said she understands that all TSA employees are
employed through the Federal Homeland Security Office.
COMMISSIONER BILL TANDESKE, Department of Public Safety, said he
thinks it is appropriate that his department is responsible for
search and rescue, but there are a lot of variables involved in
an effort in a state this size. They have an obligation to those
folks for their safety.
I think it's important that we make search and rescue
decisions based on sound search principles and doing
the right thing for the right reasons.... One of the
guiding principles of any law enforcement operation is
don't let a bad situation get worse. If you're missing
one, don't end up missing three.
COMMISSIONER TANDESKE said there are a lot of notices of snow
mobilers over due and volunteers find the vast majority of them.
He questioned the validity of the families that lost loved ones
using litigation as a way to find answers about why the system
didn't work.
SENATOR OGAN asked how many planes are listed as missing in
Alaska.
COMMISSIONER TANDESKE replied that he didn't know for sure.
SENATOR OGAN said he had heard around 40 to 50. He asked if they
are in any litigation now over search and rescue issues.
COMMISSIONER TANDESKE replied that he didn't know, since he had
been with the department just three months.
MS. VOIGTLANDER informed members that the Denali Highway case is
on appeal to the supreme court.
SENATOR OGAN asked if there had been some disciplinary action
associated with that case. He asked what assurances Alaskans
have that these things will be taken care of if they are held
harmless in such situations.
COMMISSIONER TANDESKE clarified that he was aware of the appeal
on the Denali case; he thought the question pertained to new
litigation. Without getting into specifics, he said that there
was disciplinary action in that case and he would hold his
employees accountable just as they are in any situation.
CHAIR SEEKINS asked how this bill would have affected the Olrum
case specifically.
COMMISSIONER TANDESKE replied there is a fair amount of
misinformation about that case and he isn't sure how to answer
since he is not an attorney.
CHAIR SEEKINS recalled that temperatures were around -50 degrees
when that happened.
COMMISSIONER TANDESKE replied that is correct.
CHAIR SEEKINS asked if the troopers would normally send out the
snow machines to find someone at -50 temperatures.
COMMISSIONER TANDESKE said not necessarily on a snow machine,
but they would take all circumstances into account before making
a decision.
2:45 p.m.
CHAIR SEEKINS asked if this bill would hold him harmless when he
makes a judgment call about a search or rescue.
COMMISSIONER TANDESKE replied he would have to refer to a legal
mind to answer that question, but this bill does not change the
statutory responsibility for search and rescue within his
department.
CHAIR SEEKINS asked if it would insulate the department somewhat
from acts or omissions.
MS. VOIGTLANDER responded that this would immunize the actions
arising out of the search and rescue. "It would mean that there
could not be a civil law suit for damages, a tort liability
claim."
She explained that the proposed amendment cleans up language in
the civil and homeland defense sections.
SENATOR FRENCH said he reads the bill as being an absolute bar
to any claim that arises out of the troopers handling a search
and rescue.
TAPE 03-31, SIDE A
2:48 p.m.
SENATOR FRENCH said it's possible to imagine a situation where
there is just outright negligence.
COMMISSIONER TANDESKE said he would have to defer to legal
minds.
SENATOR OGAN asked how many cases there are for fire fighting.
MS. VOIGTLANDER replied the Miller's Reach fire was consolidated
into one class action case and there is one other claim and one
other lawsuit. She didn't know of a dollar value for either one
of them. She is hesitant to comment on Miller's Reach because it
is in trial right now.
CHAIR SEEKINS asked if this statute would act as a bar to
protect the state from these types of actions in the fire
fighting area.
MS. VOIGTLANDER replied yes, but she noted that this legislation
is not retroactive.
MR. JEFF JAHNKE, State Forester, said that there are about 150
million acres to protect and they get between 500 and 600 forest
fires per year. Their success depends on a safe and effective
initial attack to prevent small fires from becoming big fires.
SB 171 would provide immunity for firefighters fighting wild
land fires. This is important for two major reasons. One, it
would allow the firefighters to focus on safe and effective
firefighting rather than having to weigh the potential for a
lawsuit in every decision they make during their initial attack.
Second, it would reassure the state firefighters that they have
the same protection and immunity that their local and federal
counterparts, who are often fighting with them, have. It would
reduce reluctance to becoming a leader.
SENATOR THERRIAULT motioned to adopt amendment #1, sponsored by
the attorney general's office.
MS. VOIGTLANDER explained that the recitations referring to the
federal agencies are not germane to immunizing state and local
employees. The proposed amendment makes clear that the bill
pertains to officers who are members of the state's organized
militia on state active duty.
CHAIR SEEKINS announced there is no objection to the amendment
and it is adopted. He said he would hold the bill because a
number of other people indicated intent to testify. There being
no further business to come before the committee, he adjourned
the meeting at 3:00 p.m.
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