Legislature(2003 - 2004)
05/18/2003 10:10 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 245(JUD)(efd fld)-SUITS & CLAIMS: MILITARY/FIRE/DEFENSE CHAIR RALPH SEEKINS called the Senate Judiciary Standing Committee meeting to order at 10:10 a.m. Present were Senators Ellis, French and Ogan. The first order of business to come before the committee was CSHB 245(JUD)(efd fld). SENATOR FRENCH said he continued to have reservations about section 2, which has to do with search and rescue functions. He feels that law enforcement officers have to be held accountable for the decisions they make. For instance, if some FBI and DEA officers decided to make a bust on what they think is a drug house and they wind up three doors down by mistake, because the printing of the address on the search warrant was wrong, they should be responsible. He feels there should be some balance point that they haven't found yet for making certain that once the function is undertaken, it's undertaken in a responsible way. Another example is if he calls a state trooper asking for help and he puts the phone down and writes a note to himself and then completely forgets it. "It just flat slips his mind. That strikes me that there's some liability there...Under this statute, they would walk free." CHAIR SEEKINS asked if he proposed to hold the state or the individual liable for that. SENATOR FRENCH responded that either one would be immune under this section. He believes the balance point should be somewhere farther away from absolute immunity. MS. GAIL VOITLANDER, Assistant Attorney General, commented that in Senator French's first scenario nothing in this bill takes away anyone's ability to sue for a constitutional rights violation under 42USC, section 1983. On the latter scenario, the Supreme Court has already stated in four cases in a row that you cannot sue the police for negligent investigation including both the decision of whether to commence an investigation or not and how the investigation is carried out. This bill simply makes it clear that that same policy, which is recognized by the Supreme Court is the best one for the state of Alaska and people overall.... Regarding the last scenario, as with any state employee, when there is a dereliction of duty, then obviously there are personnel actions up to and including discharge that is the vehicle to hold someone personally responsible. What this bill does is simply say the state treasury will not be held responsible and if there are derelictions of duty, then obviously those would become personnel matters... SENATOR OGAN asked if she remembered the instance in which an Anchorage airport policeman chased an unarmed person and finally shot and killed him. MS. VOITLANDER recalled it was a single officer with a single vehicle that went down to Indian and that action resulted in the death of a young man. The family did sue in that case under civil rights violation, but it was resolved out of court. SENATOR OGAN asked if police officers are indemnified under this bill. MS. VOITLANDER replied the only portions of this bill that would address actions of police officers is the search and rescue area, section 2, or if they participated in civil defense activities under sections 7 - 10. SENATOR FRENCH asked about a scenario with a fire on the Hillside in Anchorage due to the spruce bark beetle deadfall and a bulldozer is cutting a firebreak and takes a wrong turn. The operator bulldozes a huge swath and knocks down part of a building. He questioned whether the state would be liable under this bill. MS. VOITLANDER replied this bill would bar a civil action for damages that resulted from an act or omission if it was in prevention, monitoring, control or suppression of fires. Obviously, if for some reason the bulldozer's action rose to the level of constituting a violation of someone's federally protected rights, they could sue. SENATOR FRENCH asked what the difference was between sections 11 and 12 since they are both about fire. MS. VOITLANDER replied that under Title 41 there are two chapters that deal with firefighting activities by the state. Chapters 15 and 17 of Title 41 are concerned with firefighting and so they are reflected in the bill also. 10:23 - 10:25 a.m. - at ease SENATOR OGAN said he struggles with giving this power back to the king, so to speak, where the people are less than sovereign. He asked Tam Cook, Legislative Affairs, if he was off base. MS. TAMARA COOK, Legislative Affairs Agency, replied: Senator Ogan's remarks highlight the difficulty of the choice that is before the legislature in this regard. Because we don't have a king any more, one could certainly urge that when you analyze the burdens, they are allocating the possibility of loss. The state enjoys sovereign immunity as a matter of constitutional law and chooses to some extent to waive that immunity. (Municipalities do not enjoy sovereign immunity.)...In our system of course, the government is much more closely tied to the people as a whole. So, when the state elects to assume some liability in order to protect the individual, that liability is actually born by the populations as a whole. It is all of us that bear that liability and the question is is it better for the populace as a whole through its taxes and its fees and its burdens to assume liability in situations in order to preserve what might be a catastrophic loss on the part of some of the individuals of that society? So, in fact, I think the choice is far worse when you're talking about a modern complex government such as ours.... No matter how it comes out, somebody is going to have to bear that burden and that's the philosophical problem. Where do you place that? SENATOR THERRIAULT arrived at 10:35 a.m. CHAIR SEEKINS said he thought it was reasonable to give the state sovereign immunity for certain circumstances. SENATOR OGAN said that the Supreme Court recently said that the state could be held liable for negligence in the Miller's Reach fire, but the Superior Court judge tossed it out under the assumption that the state was immune from suits like that. He asked if she knew what the assumption was under which Judge Cutler originally tossed the suit out. MS. COOK replied that she would defer to the Attorney General's office for those comments. MS. VOITLANDER responded that there were actually two different lawsuits filed - one in Palmer that was dismissed by Judge Cutler and then one in Anchorage with Judge Reese who dismissed that case, as well. Judge Cutler was presented with briefings that showed Ninth Circuit cases in which a number of other states adopted the concept that there should not be a lawsuit against firefighters and their employers - be they state, federal or local government, because of the problems that arise in terms of firefighting decisions. SENATOR FRENCH said he missed the grounds for reversal in the Supreme Court. MS. VOITLANDER explained that the Supreme Court rejected the other jurisdictions and found that the Legislature had not enunciated clearly enough under AS 9.50.250, the statute under Alaska law that allows someone to file a tort claim, that there should be immunity. They found that some decisions might be immune, but some of them may not. The Supreme Court remanded it to the trial court for further factual development and eventually there were trials on a number of issues where plaintiffs claimed that state firefighters were negligent for a variety of specific actions. SENATOR FRENCH said it sounds like the basic structure is that you can sue the state unless the Legislature clearly takes the right away. MS. VOITLANDER replied if there is not an existing statute that takes the right away and you fall within the types of suits where claims are allowed under AS 9.50.250, you can sue the state agents who are negligent. She noted that AS 9.65.070 immunizes local firefighters and municipal firefighters. SENATOR THERRIAULT moved to pass CSHB 245(JUD) (efd fld) from committee with individual recommendations and attached fiscal notes. SENATOR FRENCH objected for a short question. He said he thought they could make this a better bill by trying to enunciate a couple of principles. One is you can't force the state to take on a rescue or fight a fire, but having chosen to act, he couldn't see anything wrong with saying you have to act responsibly. SENATOR FRENCH also agreed that the state should have a certain amount of immunity, but he thought there was a difference between that and blanket immunity. This bill gives blanket immunity in several big areas. He was concerned that someone's house could get bulldozed or someone could kick in the wrong door and you could sue under the federal constitution; and he thought the state constitution should be just as open to correcting mistakes as the federal constitution. SENATOR OGAN said he didn't have problems with the civil defense and military areas of the bill, but he is still struggling with the search and rescue and fire sections, because there are so many variables that are out of control for those people. CHAIR SEEKINS called for a roll call vote. The motion passed with Senators Ogan, Therriault and Seekins voting yea and Senator French voting nay. CSHB 245(JUD) (efd fld) moved from committee with attached fiscal notes.
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