Legislature(2011 - 2012)Anch LIO Rm 220

09/12/2011 11:00 AM House JUDICIARY


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11:09:15 AM Start
11:14:40 AM Review of Select 2010 Court Decisions
01:23:20 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Review of select 2010 court decisions TELECONFERENCED
-- Testimony <Invitation Only> --
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                       Anchorage, Alaska                                                                                        
                       September 12, 2011                                                                                       
                           11:09 a.m.                                                                                           
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Carl Gatto, Chair                                                                                                
Representative Steve Thompson, Vice Chair                                                                                       
Representative Wes Keller                                                                                                       
Representative Bob Lynn                                                                                                         
Representative Max Gruenberg                                                                                                    
Representative Lindsey Holmes                                                                                                   
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Representative Lance Pruitt                                                                                                     
Representative Mike Chenault (alternate)                                                                                        
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
REVIEW OF SELECT 2010 COURT DECISIONS                                                                                           
                                                                                                                                
     - HEARD                                                                                                                    
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
No previous action to record                                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
GERALD LUCKHAUPT, Assistant Revisor of Statutes                                                                                 
Legislative Legal Counsel                                                                                                       
Legislative Legal and Research Services                                                                                         
Legislative Affairs Agency (LAA)                                                                                                
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Testified during the review of select 2010                                                               
court decisions.                                                                                                                
                                                                                                                                
DENNIS BAILEY                                                                                                                   
Legislative Legal Counsel                                                                                                       
Legislative Legal and Research Services                                                                                         
Legislative Affairs Agency (LAA)                                                                                                
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Testified during the review of select 2010                                                               
court decisions.                                                                                                                
                                                                                                                                
JEAN MISCHEL Legislative Legal Counsel                                                                                          
Legislative Legal and Research Services                                                                                         
Legislative Affairs Agency (LAA)                                                                                                
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Testified during the review  of select 2010                                                             
court decisions.                                                                                                                
                                                                                                                                
ANNE CARPENETI, Assistant Attorney General                                                                                      
Legal Services Section                                                                                                          
Criminal Division                                                                                                               
Department of Law (DOL)                                                                                                         
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Testified during the review  of select 2010                                                             
court decisions on recent legal challenges.                                                                                     
                                                                                                                                
QUINLAN STEINER, Director                                                                                                       
Central Office, Public Defender Agency (PDA)                                                                                    
Department of Administration (DOA)                                                                                              
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:   Testified during the review  of select 2010                                                             
court decisions.                                                                                                                
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
11:09:15 AM                                                                                                                   
                                                                                                                                
CHAIR CARL  GATTO called the  House Judiciary  Standing Committee                                                             
meeting  to order  at 11:09  a.m.   Representatives Gatto,  Lynn,                                                               
Keller, Thompson, Gruenberg, and Holmes  were present at the call                                                               
to order.                                                                                                                       
                                                                                                                                
Prior  to  addressing  the  agenda  items,  the  committee  spoke                                                               
briefly  about a  recent  sexual assault  case  that occurred  in                                                               
Anchorage.                                                                                                                      
                                                                                                                                
^Review of Select 2010 Court Decisions                                                                                          
             Review of Select 2010 Court Decisions                                                                          
                                                                                                                                
11:14:40 AM                                                                                                                   
                                                                                                                                
CHAIR GATTO announced that the only  order of business would be a                                                               
review of  select 2010 court decisions.   He turned to  the first                                                               
case, Anderson  v. Alyeska  Pipeline Service  Co., 234  P.3d 1282                                                             
(Alaska 2010).                                                                                                                  
                                                                                                                                
CHAIR  GATTO offered  his understanding  that if  a company  with                                                               
workers'  compensation insurance  does  something  that causes  a                                                               
worker  to  be   injured,  it  is  clear  the   company  will  be                                                               
responsible to  pay for  expenses related to  the injury  and any                                                               
time the  worker is not  able to work.   The question  is whether                                                               
the  worker  can  bring  a  lawsuit  given  the  worker  received                                                               
workers'  compensation.   He described  the specific  incident in                                                               
which Ms. Anderson was vacuuming,  the cart moved, and a 70-pound                                                               
table fell on her.                                                                                                              
                                                                                                                                
11:16:27 AM                                                                                                                   
                                                                                                                                
DENNIS BAILEY,  Legislative Legal Counsel, Legislative  Legal and                                                               
Research Services, Legislative Affairs  Agency (LAA), stated that                                                               
the  purpose of  this report  to the  legislature is  to identify                                                               
problem  areas, conflicts,  or areas  in which  the law  has been                                                               
applied in  an unusual  way and  to identify  cases in  which the                                                               
legislature may  have an interest.   A  number of issues  in this                                                               
case relate to  issues of exclusive liability  under the workers'                                                               
compensation statutes.  However, the  issue he wished to draw the                                                               
legislature's  attention  to  is   the  question  concerning  the                                                               
liability  "up  the chain  of  contractors"  that provides  if  a                                                               
subcontractor  does not  provide workers'  compensation coverage,                                                               
the contractor  is liable.   If the  contractor does  not provide                                                               
coverage, the  project owner is  liable.  In Anderson  v. Alyeska                                                             
Pipeline Service Company, the court  reviewed the issue of what a                                                             
project owner means, the definition  in statute, and the question                                                               
of how the  application of the project owner would  apply in this                                                               
case.  The reason Legislative  Legal has identified this case for                                                               
extra  consideration  is  that   the  court  identified  possible                                                               
unintended  consequences or  interpretations  that  may not  have                                                               
been intended  in the statute.   For example, an issue  may arise                                                               
when  the  project  owner  contracts   with  a  contractor  in  a                                                               
situation which does  not fall under a construction  contract.  A                                                               
circumstance may arise, such as  one identified in the case, when                                                               
a  law  firm  hires  and  contracts with  a  company  to  provide                                                               
delivery  service.    It  is  arguable  in  this  case  that  the                                                               
liability  in this  case,  the liability  of  the project  owner,                                                               
would  fall on  the  owners of  the  law firm.    The court  also                                                               
identified the  issue of a  building owner hiring a  plow company                                                               
as a  contractor to plow  snow.   Under the language,  that would                                                               
make  the  project owner  liable  for  the workers'  compensation                                                               
coverage of a subcontractor or  if the contractor doesn't provide                                                               
coverage, the  building owner may  be potentially liable  for the                                                               
workers' compensation coverage of the snow plow company.                                                                        
                                                                                                                                
11:20:56 AM                                                                                                                   
                                                                                                                                
MR. BAILEY summarized that is  the issue the court identified and                                                               
the  reason   this  decision  is   before  the  committee.     He                                                               
highlighted several  points, including that the  court identified                                                               
this issue,  but limited its  decision to  the facts of  the case                                                               
recognizing some  validity exists with  the argument made  by the                                                               
opposing parties.   Therefore, it  is unclear if the  court would                                                               
arrive at  the same decision in  another case.  In  response to a                                                               
hypothetical  example he  answered  that the  project owner,  the                                                               
building  owner,   or  potentially   the  snow  plow   driver  or                                                               
contractor could  be held liable depending  on the circumstances.                                                               
Those  are  questions  of   extraneous  liability  and  exclusive                                                               
liability  under the  statute.   He provided  liability questions                                                               
such as in this case the  injured party is a subcontractor so the                                                               
contractor should  have made workers' compensation  available but                                                               
did not.   The next in line for liability  is the renter followed                                                               
by the homeowner.  The homeowner  hired someone so he/she did not                                                               
need to deal with liability issues.   The question then arises as                                                               
to whether  the homeowner  is the  top of  the chain  of command.                                                               
Those  issues have  been debated  and the  legislature previously                                                               
decided that  the exclusive liability provisions  of the workers'                                                               
compensation statutes  would apply  to the  project owner.   That                                                               
issue  was  addressed  in  this   case  but  did  not  present  a                                                               
controversial  issue  in the  process.    Essentially, the  court                                                               
applied  the law  that  the project  owner  enjoys the  exclusive                                                               
liability  that a  contractor would  enjoy as  an employer.   The                                                               
point  being  that  the  legislature made  a  decision  that  the                                                               
exclusive liability  would apply to  project owners and  that was                                                               
applied in this case in a  routine manner.  However, that was not                                                               
the reason  this case has  been identified for  the legislature's                                                               
consideration.                                                                                                                  
                                                                                                                                
11:25:01 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  HOLMES  related  she  found this  case  the  most                                                               
interesting  of the  five cases  in  terms of  whether the  court                                                               
decided  this case  correctly and  whether the  legislature likes                                                               
the idea  that the  project owners  are responsible  for workers'                                                               
compensation, have  immunity and  cannot be sued  for negligence,                                                               
and  their liability  is capped.    Therefore, in  a scenario  in                                                               
which  a  contractor  hires   a  subcontractor  without  workers'                                                               
compensation   whose  employee   is  injured,   the  contractor's                                                               
workers' compensation  would cover the injured  worker.  However,                                                               
the  contractor  has some  protections  and  cannot be  sued  for                                                               
negligence.  The legislature made  that decision a few years ago.                                                               
She  said  although  it  appears  as  though  the  statutes  were                                                               
correctly applied in this case,  the ongoing policy debate in the                                                               
legislature surrounds  whether the  policy was  decided correctly                                                               
at the  statutory level.   She related  her fascination  with the                                                               
definition of  "project owner"  and how  far does  this go.   The                                                               
court  identified  what  constitutes   a  "project  owner"  on  a                                                               
construction site such  that it moves up  from the subcontractors                                                               
to their  subcontractors and on up  the line.  However,  it's not                                                               
as  clear  when  the  activity   happens  outside  the  realm  of                                                               
construction  such  as  when  a  law  firm  hires  a  bookkeeper.                                                               
Businesses  and   companies  hire   people  to   perform  routine                                                               
business,  and   therefore  the  question  becomes   whether  the                                                               
legislature  wants that  liability  to  go "all  the  way up  the                                                               
chain,"  which  is  one  legitimate  policy  decision.    If  the                                                               
aforementioned is not  the case, the legislature  needs to decide                                                               
how it wants to protect workers  when they are injured as well as                                                               
how  to  handle  negligence,  when  people  will  be  covered  by                                                               
workers' compensation,  when people  should be  able to  sue, and                                                               
what employers of subcontractors should  be aware of with respect                                                               
to liability.    The  courts have  identified some gray  areas in                                                               
the law that the legislature should address.                                                                                    
                                                                                                                                
CHAIR GATTO  asked whether  the ultimate  "project owner"  is the                                                               
State of  Alaska.  He  pointed out that Alyeska  Pipeline Service                                                               
Company operates  on state lands  and takes state  resources, and                                                               
therefore the  question becomes whether the  legislature went far                                                               
enough.                                                                                                                         
                                                                                                                                
11:28:11 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE THOMPSON recalled the  earlier scenario in which a                                                               
snow plow  company hired  a subcontractor, but  there was  also a                                                               
renter, a  rental management  company, an  absentee owner,  and a                                                               
building  owner.   Therefore,  he questioned  how  far this  goes                                                               
since it gets really spread out.                                                                                                
                                                                                                                                
11:28:44 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG suggested  that a  number of  the cases                                                               
being  considered today  did not  fall in  his area  of expertise                                                               
since some pertain to resource  issues or other issues that other                                                               
legislative committees address.   He suggested that the committee                                                               
refer cases with  important and interesting policy  issues to the                                                               
committee  of  first  referral  and this  committee  would  be  a                                                               
subsequent committee  of referral.   In  doing so,  the committee                                                               
would receive input from the primary committee.                                                                                 
                                                                                                                                
CHAIR GATTO indicated his interest in doing so.                                                                                 
                                                                                                                                
11:30:50 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE   THOMPSON   posed   a  situation   in   which   a                                                               
subcontractor  with  workers'  compensation paid  the  employee's                                                               
medical bills and  lost wages, but the employee tried  to sue the                                                               
project owner.   He recalled that  in such a situation,  in order                                                               
to  succeed in  such a  lawsuit, the  first person  who would  be                                                               
compensated  would be  the workers'  compensation insurance.   He                                                               
asked if that is still the case.                                                                                                
                                                                                                                                
MR.  BAILEY, clarifying  that he  is  not an  expert on  workers'                                                               
compensation,  said he  thought  the  answer would  be  yes.   He                                                               
related  his understanding  that  workers' compensation  provides                                                               
for a  lien and if the  injured party recovers damages  through a                                                               
third  party,  the  workers' compensation  carrier  can  serve  a                                                               
subrogation lien against the proceeds.                                                                                          
                                                                                                                                
11:32:03 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG   made  a  motion  that   the  workers'                                                               
compensation portion of  the case be referred to  the House Labor                                                               
and Commerce  Standing Committee.   There being no  objection, it                                                               
was so ordered.                                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG then directed  attention to the issue in                                                               
the case which pertains to an  offer of judgment.  He referred to                                                               
page 8 of  the decision, under "B. It was  Error to Award Alyeska                                                               
Rule 68  Attorney's Fees."   He  said that  it pertains  to Civil                                                               
Rule 68,  an offer of judgment,  which is a document  that either                                                               
party can  serve on the  other party;  an offer to  have judgment                                                               
taken to a certain extent or for  a certain amount.  If the offer                                                               
is accepted, a judgment is issued by stipulation.                                                                               
                                                                                                                                
REPRESENTATIVE HOLMES interjected it is basically a settlement.                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG  agreed, adding that it  is a settlement                                                               
approved by  the court, which becomes  a judgment.  If  the offer                                                               
is rejected and the attorney does  better at trial than he/she is                                                               
offered, the  attorney can receive  the actual attorney  fees, he                                                               
said.   He characterized it as  "a real hammer."   He pointed out                                                               
another set  of statutes  also adjusts the  interest rate  in the                                                               
same way.   He  referred to it  as an informal  way of  doing it.                                                               
The offer  of judgment in  this case  was offered by  the defense                                                               
for a  nominal sum of $10.   This was not  an appropriate subject                                                               
because it was such a trivial amount.   On the other hand, it was                                                               
a real  deterrent because rather  than receiving a sum  of money,                                                               
the other party  and the attorney would have had  to discuss that                                                               
the client may  be liable not just for Rule  82, partial attorney                                                               
fees, but for  the total attorney's fees.  He  highlighted that a                                                               
nominal  offer  of  judgment  only  works  one  way.    Only  the                                                               
defendant can use  a nominal offer of judgment for  $10 since the                                                               
plaintiff would have  to have a sum of money.   For instance, the                                                               
plaintiff could  ask for  $1 million but  say he/she  will settle                                                               
for $100,000, although  that could not be done if  a case is only                                                               
worth  $100,000.   The  use of  a defense  offer  of judgment  is                                                               
useful  when the  real  issue  is liability,  since  a person  is                                                               
either liable or not.  If,  on the other hand, this decision were                                                               
reversed by  the legislature or  a future court the  change would                                                               
benefit defendants at the cost  of plaintiffs.  Thus, some issues                                                               
exist  for this  committee.   The subject  of offers  of judgment                                                               
usually only  apply in money  cases, but  in the field  of family                                                               
law  judgments  can be  helpful  in  instances in  which  custody                                                               
issues are  being worked out.   Courts vary in whether  offers of                                                               
judgment are  allowed and  most do  not.   He suggested  that the                                                               
statutes  would   be  inapplicable,  whereas  this   pertains  to                                                               
attorney fees.   He  inquired as to  whether the  committee would                                                               
like to consider  this further.  He offered to  research this and                                                               
report back to the committee.                                                                                                   
                                                                                                                                
CHAIR  GATTO  said he  did  not  object  to him  considering  the                                                               
matter.                                                                                                                         
                                                                                                                                
11:38:18 AM                                                                                                                   
                                                                                                                                
CHAIR  GATTO announced  that the  next case  would be  the Mat-Su                                                             
Valley Medical  Center v.  Advanced Pain  Centers of  Alaska, 281                                                             
P.3d 698  (Alaska 2009).   He offered his understanding  that the                                                               
issue revolves around  the requirement of a  certificate of need.                                                               
In  the event  a second  hospital  would be  built, the  hospital                                                               
would need  to demonstrate  the need  for a  second hospital.   A                                                               
Palmer Hospital  became a private  hospital and  subsequently the                                                               
Advanced Pain Center of Alaska  sought to convert office space to                                                               
a single suite ambulatory surgery center.                                                                                       
                                                                                                                                
11:39:56 AM                                                                                                                   
                                                                                                                                
JEAN MISCHEL,  Legislative Legal  Counsel, Legislative  Legal and                                                               
Research  Services, Legislative  Affairs Agency  (LAA), explained                                                               
that  the issue  in  the Mat-Su  Valley  Medical Center  ("Mat-Su                                                               
Medical") case  is not  a question of  whether the  Advanced Pain                                                               
Center of Alaska developed a  suite and violated a certificate of                                                               
need since the  Advanced Pain Center of  Alaska ("Advanced Pain")                                                               
did not  have a certificate  of need.   The Department  of Health                                                               
and Social  Service's commissioner determined that  a certificate                                                               
of  need  was  not  required,  but  the  challenger  delayed  the                                                               
complaint  beyond the  administrative  review  period allowed  to                                                               
file a  complaint.   Thus, a  threshold standing  question ensued                                                               
and  became the  primary  concern  of the  court.   In  reviewing                                                               
whether Mat-Su Medical  had standing to challenge  the failure of                                                               
the  Department of  Health and  Social Service's  commissioner to                                                               
issue a  certificate of need,  the court considered  AS 18.07.031                                                               
and AS 18.07.091.   The commissioner had decided  that the dollar                                                               
amount didn't  meet the  certificate of  need threshold.   Mat-Su                                                               
Medical challenged  that determination and charged  that Advanced                                                               
Pain had  underestimated the value  of the conversion.   However,                                                               
an ambiguity in the statute that  set out the three categories of                                                               
persons  who  could  challenge  a   decision  not  to  require  a                                                               
certificate of need  for that type of conversion.  The court went                                                               
through some  painstaking analysis of  why the third  category of                                                               
people who  could challenge a  lack of issuance of  a certificate                                                               
of  need included  Mat-Su  Medical.   The  decision  turned on  a                                                               
grammatical construction  of the  statute, which resulted  in the                                                               
legislature being  concerned the statute was  in artfully drafted                                                               
or  confusing.   The court  corrected any  ambiguity in  favor of                                                               
opening up  challenges to the  failure to issue a  certificate of                                                               
need in this case.   Therefore, the question for the legislature,                                                               
at least the  Legislative Council, is whether that  was a correct                                                               
interpretation given the confusing nature  of the language in the                                                               
statute.  She  offered to elaborate on why that  became an issue,                                                               
but highlighted that the primary  concern was the existence of an                                                               
ambiguity that the court resolved broadly.                                                                                      
                                                                                                                                
11:43:38 AM                                                                                                                   
                                                                                                                                
MS.  MISCHEL,  in  response  to   Chair  Gatto,  referred  to  AS                                                               
18.07.091.  The  problem the court identified was the  use of the                                                               
word  "violation"  in  the  last  phrase of  the  statute.    The                                                               
statute,  AS 18.07.091(a)  provides the  following:   "Injunctive                                                               
relief against violations of this  chapter or regulations adopted                                                               
under  this chapter  may be  obtained from  a court  of competent                                                               
jurisdiction ...."   And the third category was  that "any member                                                               
of  the  public  substantially  and  adversely  affected  by  the                                                               
violation."  The  question the court had to sort  out was whether                                                               
the phrase  "by the violation"  meant a violation of  the chapter                                                               
of regulations  or a  violation of a  certificate of  need, which                                                               
was  the  second category  of  persons  who could  challenge  the                                                               
statute.    The  court  determined  that  the  lead  in  language                                                               
controlled so the  reference to violation was a  violation of the                                                               
chapter of regulations and not  a violation of the certificate of                                                               
need.                                                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG  commented that  the statute is  set out                                                               
in the opinion on page 4 under "B".                                                                                             
                                                                                                                                
REPRESENTATIVE  HOLMES   noted  the  specific  statute   is  also                                                               
included in the packet.                                                                                                         
                                                                                                                                
11:45:40 AM                                                                                                                   
                                                                                                                                
CHAIR GATTO  referred to  page 13 of  the Alaska  Supreme Court's                                                               
opinion in members' packets.  He  read part of the conclusion, as                                                               
follows:   "For these reasons,  we REVERSE the grants  of summary                                                               
judgment in favor of Advanced Pain  and the state ...."  He asked                                                               
whether that meant the summary  judgment was in favor of Advanced                                                               
Pain and now it is reversed.                                                                                                    
                                                                                                                                
MS. MISCHEL  explained that  the court,  instead of  finding that                                                               
the  Superior  Court  correctly  decided  this  case  of  summary                                                               
judgment motion,  remanded the decision  back to the  trial court                                                               
to determine  whether Advanced Pain essentially  got away without                                                               
a certificate  of need and  whether the commissioner  was correct                                                               
as a factual matter since  the summary judgment was overturned in                                                               
favor of Advanced Pain.                                                                                                         
                                                                                                                                
CHAIR GATTO asked whether Advanced Pain is the prevailing party.                                                                
                                                                                                                                
MS. MISCHEL  answered no.  She  explained that it isn't  known at                                                               
this time  which party will  ultimately prevail, but  instead the                                                               
court decided the  Mat-Su Medical had standing to  bring the case                                                               
to full  trial rather than  be decided on summary  judgment, that                                                               
they lack standing  of failure to issue the  certificate of need.                                                               
In further  response to Chair  Gatto, she related that  she would                                                               
research what  happened at the trial  court on remand.   They may                                                               
have  entered  into  settlement  negotiations,  she  said.    The                                                               
commissioner ultimately  determined that  she believed  the court                                                               
correctly interpreted  the standing  question in favor  of Mat-Su                                                               
Medical.   Therefore,  she surmised  that  the commissioner  went                                                               
back administratively  and reviewed the dollar  amounts involved,                                                               
if it went to trial at all.                                                                                                     
                                                                                                                                
REPRESENTATIVE HOLMES related her  understanding that Ms. Mischel                                                               
is  stating  the commissioner  actually  agreed  with the  Alaska                                                               
Supreme Court's interpretation of  the grammatical wording of the                                                               
statute.                                                                                                                        
                                                                                                                                
MS. MISCHEL answered yes, noting it was the former commissioner.                                                                
                                                                                                                                
REPRESENTATIVE HOLMES  offered her  belief that this  made sense.                                                               
It seemed the court reached  the correct answer, but acknowledged                                                               
that the term  "violation" is being used in more  than one way in                                                               
AS 18.07.091(a)], whether  it was violating the  whole chapter of                                                               
law or  violating a certificate of  need.  The first  use clearly                                                               
refers to violations of the statute  and the second use refers to                                                               
violations of the certificate of  need, and the third instance of                                                               
violation has no  clarification of whether it  means violation of                                                               
statutes  or  certificate  of  need.   So  the  question  becomes                                                               
whether the administration violated the  statute by not issuing a                                                               
certificate of need.   She said she thought the  court parsed the                                                               
question out correctly.   She asked whether  the committee agrees                                                               
and  if  the  legislature  should specify  in  statute  "of  this                                                               
chapter" to  clarify the  matter or just  let the  court's ruling                                                               
stand.                                                                                                                          
                                                                                                                                
11:50:18 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG summarized  the actions  by the  court.                                                               
He referred  to the final  paragraph of the opinion,  and offered                                                               
that the trial  court apparently dismissed the case.   The Alaska                                                               
Supreme Court reversed  that ruling and remanded the  case to the                                                               
trial court  and ordered the trial  to go forward.   The question                                                               
of  statutory authority  seems to  be in  an area  for the  House                                                               
Health  and  Social  Services  Standing   Committee  (HSS).    He                                                               
suggested  that the  case be  referred to  the HSS  committee for                                                               
consideration, noting  he did  not feel  confident in  making the                                                               
decision.                                                                                                                       
                                                                                                                                
CHAIR GATTO  agreed.  He  expressed concern that having  a second                                                               
facility with  expensive diagnostic equipment  such as an  MRI is                                                               
direct competition with the current  hospital and both facilities                                                               
could  suffer financially  and go  bankrupt.   He questioned  the                                                               
need  and  suggested this  is  the  reason  for the  issuance  of                                                               
certificates of need.                                                                                                           
                                                                                                                                
11:51:57 AM                                                                                                                   
                                                                                                                                
MS. MISCHEL responded that particular  issue was not addressed by                                                               
the court  in this case.   Again, the statutory  threshold exists                                                               
for  purchases and  leases, but  the issue  for the  committee to                                                               
consider is  whether the hospital  has standing to  challenge the                                                               
underlying decision  not on the  certificate of need.   Thus, the                                                               
question was fairly technical and does  not get into the basis of                                                               
certificates of need.                                                                                                           
                                                                                                                                
REPRESENTATIVE  LYNN  asked whether  anyone  could  explain if  a                                                               
certificate of need means certificate of monopoly instead.                                                                      
                                                                                                                                
REPRESENTATIVE  THOMPSON  concurred.   He  noted  that he's  seen                                                               
abuses  of  this  resulting  in  undue  profits  being  made  and                                                               
unreasonable charges to the public.                                                                                             
                                                                                                                                
REPRESENTATIVE LYNN disclosed that  he has introduced legislation                                                               
to eliminate certificates of need.                                                                                              
                                                                                                                                
CHAIR  GATTO  pointed  out that  some  monopolies  are  perfectly                                                               
legal, such as a power company  since it doesn't make sense for a                                                               
second set of poles to be  strung alongside the existing ones, so                                                               
monopolies  are regulated.   He  related  his understanding  that                                                               
regulations accompany certificates of  need, which do not provide                                                               
just an ability to control the market.                                                                                          
                                                                                                                                
REPRESENTATIVE  LYNN  agreed  that  the  case  doesn't  determine                                                               
whether the certificate of need is a good thing or a bad thing.                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked  whether  Representative  Keller                                                               
disagreed  with  forwarding the  case  to  the House  Health  and                                                               
Social Services Standing Committee.                                                                                             
                                                                                                                                
11:54:23 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE KELLER offered his  belief that the certificate of                                                               
need  is  a volatile  subject  since  it  refers to  millions  of                                                               
dollars.    He  pointed  out  that  the  question  of  whether  a                                                               
certificate of  need is needed  is a  volatile subject.   He said                                                               
the  question Ms.  Mischel  has brought  up  doesn't concern  the                                                               
certificate of need but rather  whether the language with respect                                                               
to  violation is  clear.   He sought  clarification on  the three                                                               
instances.    He  recalled  injunctions  could  be  made  by  the                                                               
commissioner  or the  public,  if  harmed.   He  asked if  Mat-Su                                                               
Medical  brought the  case as  a member  of the  public that  was                                                               
harmed.                                                                                                                         
                                                                                                                                
11:55:53 AM                                                                                                                   
                                                                                                                                
MS. MISCHEL concurred.                                                                                                          
                                                                                                                                
REPRESENTATIVE  KELLER offered  his  belief that  nothing in  the                                                               
case illustrated  financial harm  to Mat-Su  Medical so  in order                                                               
for them to continue seemed to  be a conflict.  He thought Mat-Su                                                               
Medical  would need  to  demonstrate financial  harm  due to  the                                                               
opening  of Advanced  Pain, which  would be  fairly intense.   He                                                               
expressed interest in the outcome of the case.                                                                                  
                                                                                                                                
11:57:01 AM                                                                                                                   
                                                                                                                                
MS.  MISCHEL  explained that  the  court  looked specifically  at                                                               
whether Mat-Su  Medical was substantially and  adversely affected                                                               
and found  that it was a  close question but it  survived summary                                                               
judgment.  The court had to go back  to the trial court to see if                                                               
the  challenge was  factually valid.   She  referred to  the last                                                               
section  of the  Alaska  Supreme Court's  opinion,  in which  the                                                               
court goes into some detail in  terms of why Mat-Su Medical had a                                                               
financial stake in the decision.                                                                                                
                                                                                                                                
CHAIR GATTO  posed a  scenario in which  Mat-Su Medical  offers a                                                               
service and  an identical service  is offered  a tenth of  a mile                                                               
away.    In   such  a  situation,  he  asked   whether  it  would                                                               
automatically  create  an  adverse profit  situation  for  Mat-Su                                                               
Medical.                                                                                                                        
                                                                                                                                
MS. MISCHEL  said that  the court wasn't  satisfied.   The Alaska                                                               
Supreme  Court reviewed  the number  of cases  handled by  Mat-Su                                                               
Medical that  were the  same types of  cases Advanced  Pain would                                                               
also handle.                                                                                                                    
                                                                                                                                
CHAIR GATTO  asked whether Advanced  Pain offered a  new industry                                                               
or services that Mat-Su Medical did not offer.                                                                                  
                                                                                                                                
MS. MISCHEL  answered no, the  court found  that of the  127 pain                                                               
related  procedures  that Mat-Su  Medical  had  performed in  the                                                               
prior year, Advanced  Pain would be equally  qualified to perform                                                               
them after the conversion.                                                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG   recalled  in  the  1980s   the  House                                                               
Judiciary Standing  Committee reviewed cases rather  quickly.  He                                                               
did not  recall dealing with  the technical aspects.   He pointed                                                               
out that this is the first hearing  in 10 years to hold this type                                                               
of review on  the report.  He hoped the  House Judiciary Standing                                                               
Committee will  be setting  a precedent  for how  the legislative                                                               
judiciary  committees  will look  at  the  reports.   He  further                                                               
recalled the  process the Council  of State  Government committee                                                               
uses to review hundreds of laws.   In many instances the laws are                                                               
referred from another  committee, but are often sent  back to the                                                               
original committee  to work  on technical  issues not  within the                                                               
area  of expertise  of the  review  committee.   He affirmed  his                                                               
belief that  the House Judiciary Standing  Committee should defer                                                               
to the  committee of primary  jurisdiction any questions  that do                                                               
not pertain  to the  judiciary.   He felt  the questions  in this                                                               
case deal with the subject of  health and should be considered by                                                               
the House Health and Social Services Standing Committee.                                                                        
                                                                                                                                
CHAIR  GATTO offered  his belief  that the  committee of  primary                                                               
jurisdiction  determines that  the  issue is  a  legal issue  and                                                               
defers to the judiciary committees.                                                                                             
                                                                                                                                
REPRESENTATIVE  KELLER  said  he wholeheartedly  appreciated  his                                                               
perspective.   However, in this  instance, the court,  rightly or                                                               
wrongly determined  legislative intent  on the  issue of  how the                                                               
word "violations" was used.   He thought the court probably ruled                                                               
correctly on  the issue of the  language.  He agreed  that matter                                                               
should go back  to the HSS committee for discussion.   He thought                                                               
that using that as justification was  weak and the whole issue of                                                               
certificates  of need  should be  considered by  the legislature,                                                               
noting  that   Representative  Lynn   has  such   a  bill.     He                                                               
characterized it  as huge issue since  the cases end up  in court                                                               
and  the  associated  legal  costs  adversely  affect  the  party                                                               
seeking a  certificate of need.   He  did not think  the question                                                               
addressed by the court provided  justification for opening up the                                                               
whole certificate of need issue.                                                                                                
                                                                                                                                
12:03:24 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG  made a  motion  that  the case  Mat-Su                                                             
Valley Medical  Center v.  Advanced Pain  Centers of  Alaska, 281                                                             
P.3d 698  (Alaska 2010) and  the notes  be referred to  the House                                                               
Health and  Social Services Standing  Committee.  There  being no                                                               
objection, it was so ordered.                                                                                                   
                                                                                                                                
12:03:42 PM                                                                                                                   
                                                                                                                                
CHAIR GATTO  announced that  the next  case for  consideration as                                                               
the Planned Parenthood v. Campbell, 232 P.3d 725 (Alaska 2010).                                                               
                                                                                                                                
12:04:40 PM                                                                                                                   
                                                                                                                                
MS.  MISCHEL  explained that  this  case  does not  substantively                                                               
involve the  issue of abortion,  but instead addresses  the issue                                                               
of  the   legislative  initiative   petition  for   the  parental                                                               
notification law.  Essentially,  the court considered whether the                                                               
petition circulated  for signature  purposes prior to  the matter                                                               
being place  on the  ballot was accurate  enough to  move forward                                                               
for a vote.   The court distinguished between  a petition summary                                                               
and a  ballot summary  and found  while both are  held to  a high                                                               
level  of accuracy  it was  okay  that the  petition summary  was                                                               
deficient as  a matter  of law  because it  was corrected  on the                                                               
ballot  summary.    The  three  areas  the  court  identified  as                                                               
deficient  in  the  ballot summary  prepared  by  the  lieutenant                                                               
governor's  office  did  not  show   an  intent  to  mislead  the                                                               
signatories of  the petition.  The  lieutenant governor's summary                                                               
left out a few key details,  one of which involved an omission of                                                               
the  significant  felony  penalties  that a  physician  would  be                                                               
subjected  to if  the physician  violated the  notice procedures.                                                               
That was  of primary  concern for  both the  trial court  and the                                                               
Alaska Supreme Court.                                                                                                           
                                                                                                                                
MS. MISCHEL  said the other  two issues involved that  the Alaska                                                               
Parental  Consent   Act  was  being  revised   without  providing                                                               
clarification of  such to the  voters and  that parts of  the act                                                               
had  been  invalidated  as being  unconstitutional.    The  third                                                               
omission was the  fact that the lieutenant  governor omitted from                                                               
the  summary  that  the  act would  restrict  current  law  since                                                               
current law  did not require  parental consent or notice.   Thus,                                                               
there was already an opportunity  for an abortion to be performed                                                               
on a  minor without  either consent  or notice.   On  these three                                                               
issues,  the Alaska  Supreme Court  agreed with  the trial  court                                                               
that the  petition summary  was deficient.   However,  the Alaska                                                               
Supreme  Court  corrected the  summary  for  the purpose  of  the                                                               
ballot  and  when  that  initiative went  to  a  statewide  vote,                                                               
language in the  summary and attached to  the initiative included                                                               
the felony provisions and the  existing law that would be revised                                                               
by the petition.  She  characterized it as fairly cumbersome, but                                                               
the  Alaska Supreme  Court reviewed  case  law and  distinguished                                                               
this  deficiency  from other  deficiencies  it  had found.    The                                                               
Alaska Supreme  Court determined this  was not so  deficient that                                                               
it  couldn't correct  it.   She said  the Alaska  Supreme Court's                                                               
decision was a fairly discretionary and fact-based decision.                                                                    
                                                                                                                                
MS. MISCHEL  emphasized that the court  recognized the importance                                                               
of holding  the petition  summaries to a  high level  of accuracy                                                               
and impartiality,  but found that  there were differences  in the                                                               
functions  of the  two  summaries.   Essentially,  it "bent  over                                                               
backwards" to  allow the petition to  go to a vote  of the people                                                               
without having to go back and  obtain new signatures.  The Alaska                                                               
Supreme  Court  also  reviewed   whether  the  summary  omissions                                                               
substantially   misrepresented  the   essential  nature   of  the                                                               
initiative,  but found  that it  did not  even though  the felony                                                               
provisions  were  lacking.   The  court  further found  that  the                                                               
petition proponents  had spent a  significant amount of  time and                                                               
resources to gather  the required signatures so  the hardship was                                                               
great.   However,  the  court discerned  little  hardship to  the                                                               
initiative's proponents  by allowing  it to  be corrected  on the                                                               
ballot.    This  particular  initiative  is  under  review  on  a                                                               
different issue  at the  Superior Court level.   She  offered her                                                               
belief that this Alaska Supreme  Court decision is significant in                                                               
terms  of  voter rights  and  has  very  little  to do  with  the                                                               
constitutional issues on abortion rights.                                                                                       
                                                                                                                                
12:12:02 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG  suggested   that  the  Alaska  Supreme                                                               
Court's  opinion seemed  reasonable.   He  pointed  out that  the                                                               
primary issue  of elections falls  squarely with the  House State                                                               
Affairs Standing  Committee.  He respectfully  suggested that the                                                               
matter be referred to that committee.                                                                                           
                                                                                                                                
REPRESENTATIVE KELLER  objected for  purposes of discussion.   He                                                               
said  that this  is an  issue of  voters' rights  and the  Alaska                                                               
Supreme Court  decided more or less  that the people had  a right                                                               
to vote  on the matter.   He  suggested that bringing  the matter                                                               
back to  the House State Affairs  Committee "as a handle"  to get                                                               
to voters'  rights question  is weak.   And to  use this  case to                                                               
start  over  on  the  parental  consent  issue,  which  is  still                                                               
pending, would also be inappropriate.                                                                                           
                                                                                                                                
REPRESENTATIVE HOLMES offered  her belief that this  issue is not                                                               
about abortion  and she  agreed with the  analysis.   She offered                                                               
her  belief  that  this  opinion   is  about  what  happens  with                                                               
deficiencies in  summaries and  if the  petition summary  will be                                                               
thrown out  or not.   She did not think  Representative Gruenberg                                                               
was suggesting  sending the  opinion to  the House  State Affairs                                                               
Standing Committee  to take up  a bill  or action, but  rather to                                                               
ensure this  committee does not  overstep its jurisdiction.   She                                                               
acknowledged that the  legislature has made it  more difficult to                                                               
put  ballot initiatives  on the  ballot and  is sympathetic  with                                                               
people  who put  a  lot of  time and  effort  into that  process.                                                               
However, it  was the lieutenant  governor and not  the initiative                                                               
sponsor who drafted  the materials.  She concluded  that it would                                                               
be  a serious  burden to  ask  the initiative  sponsors to  start                                                               
over.   Of the three  issues raised,  she agreed with  the Alaska                                                               
Supreme Court that  the most concerning oversight  was that there                                                               
was no mention  of criminal sanctions in it.   She said the court                                                               
clearly indicated  that sanctions  were needed in  going forward.                                                               
She  suggested that  the legislature  should consider  the issue,                                                               
when  criminal penalties  will be  imposed, as  to whether  those                                                               
sanctions should  be included  in the summary.   She  opined that                                                               
those  types  of issues  are  the  House State  Affairs  Standing                                                               
Committee could mull over.                                                                                                      
                                                                                                                                
12:16:28 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  indicated that  he is  merely concerned                                                               
with the jurisdictional matters  and ensuring that this committee                                                               
does not overstep its jurisdiction.   Furthermore, he said he did                                                               
not want to slight the chair  of the House State Affairs Standing                                                               
Committee.                                                                                                                      
                                                                                                                                
REPRESENTATIVE LYNN responded that he  did not feel slighted, but                                                               
questioned the  point of the  committee hearing the matter  if it                                                               
is not going to consider legislation.                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG concluded that  the committee could pass                                                               
on the referral.                                                                                                                
                                                                                                                                
12:18:01 PM                                                                                                                   
                                                                                                                                
CHAIR  GATTO  moved on  to  the  next  case  to come  before  the                                                               
committee, Weimer  v. Continental  Care and  Truck LLC,  237 P.3d                                                             
610 (Alaska 2010).                                                                                                              
                                                                                                                                
REPRESENTATIVE   GRUENBERG   offered   his   understanding   that                                                               
important statute  of limitations issues  surround the case.   He                                                               
suggested that  the administration  should have time  to consider                                                               
the matter.   He further  suggested that the committee  table the                                                               
opinion  and  set  this  case aside  until  more  information  is                                                               
available.                                                                                                                      
                                                                                                                                
CHAIR GATTO  offered his understanding that  the attorney general                                                               
believed it was too difficult to make  a decision and it is up to                                                               
the  legislature  to  decide  whether   the  document  fees  were                                                               
allowable.                                                                                                                      
                                                                                                                                
REPRESENTATIVE GRUENBERG  clarified that  the review was  done by                                                               
the  Legislative Legal  Services not  the attorney  general.   He                                                               
clarified that although  the attorney general was not  a party to                                                               
this litigation, he is in the  process of reviewing the case.  He                                                               
reiterated his  suggestion that staff  monitor the progress.   He                                                               
related his understanding  that the issue of when  the period for                                                               
the  statute of  limitation begins  for this  particular statute,                                                               
which has  significant ramifications  for Unfair  Trade Practices                                                               
Act, matters.                                                                                                                   
                                                                                                                                
CHAIR GATTO  offered his  belief that the  document fees  were on                                                               
the form  next to taxes and  other fees, which was  misleading to                                                               
consumers since it appeared to be government fees.                                                                              
                                                                                                                                
REPRESENTATIVE   GRUENBERG  offered   his  understanding,   after                                                               
discussing the  issue, that the  question in the case  is limited                                                               
to the statute of limitations and when it begins.                                                                               
                                                                                                                                
CHAIR  GATTO  asked   for  his  view  on  when   the  statute  of                                                               
limitations should begin.                                                                                                       
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he  spoke to  Ed Sniffen,  Senior                                                               
Assistant Attorney  General, Commercial/Fair  Business Practices,                                                               
from  whom  he obtained  the  impression  that this  statute  was                                                               
different than  other statues, which  typically rely on  when the                                                               
person  becomes aware  that the  fees were  illegal.   Subsequent                                                               
conversations left  him feeling  confused so Mr.  Sniffen offered                                                               
to do some additional research.                                                                                                 
                                                                                                                                
CHAIR GATTO reiterated  that the document fees  were comingled so                                                               
they represent nothing but extra profits for dealers.                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG suggested it could be tabled.                                                                          
                                                                                                                                
12:23:56 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  LYNN  offered  his   belief  that  the  issue  to                                                               
consider  is when  the statute  of limitations  starts, which  is                                                               
separate  from the  question of  fairness in  terms of  the fees.                                                               
However,  when an  individual discovers  something wouldn't  be a                                                               
time certain.                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG concurred.                                                                                             
                                                                                                                                
12:25:17 PM                                                                                                                   
                                                                                                                                
MS. MISCHEL  concurred with Representative  Lynn's summary.   She                                                               
said the  Unfair Trade Practices' statute  of limitations differs                                                               
from the  common law discovery  rule as  Representative Gruenberg                                                               
pointed out.                                                                                                                    
                                                                                                                                
CHAIR  GATTO  related  that  this   has  a  two-year  statute  of                                                               
limitations  and  others  may  be   longer.    He  pointed  to  a                                                               
hypothetical situation in which  a consumer may discover medicine                                                               
caused harm 10 years later.                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG offered  his belief  something of  that                                                               
nature  would be  covered since  the  two-year limitation  begins                                                               
when  the   plaintiff  discovered   or  reasonably   should  have                                                               
discovered that the  conduct broke the law.  He  pointed out that                                                               
it wouldn't be unreasonable to  discover the health ramifications                                                               
of a drug some time later.                                                                                                      
                                                                                                                                
MS. MISCHEL concurred.  In  response to comments, she pointed out                                                               
that the  Alaska Supreme  Court was not  reviewing when  the harm                                                               
actually occurred.  The discovery  that something was illegal was                                                               
not  the point  at  which  the court  was  willing  to start  the                                                               
statute of limitations, although the  court looks very clearly at                                                               
the dates of  harm and in this  case, the loss of the  $200.  The                                                               
court was  unwilling to accept  the proposition that  because the                                                               
plaintiff  didn't  know  it  was  illegal  that  the  statute  of                                                               
limitations was  tolled, even  though the  loss occurred  two and                                                               
one-half years earlier.                                                                                                         
                                                                                                                                
CHAIR GATTO asked whether consumers  needed to go to small claims                                                               
court over illegal document fees.                                                                                               
                                                                                                                                
MS. MISCHEL answered that the  Alaska Supreme Court is not making                                                               
that judgment since the statute  provides for other options, such                                                               
as complaints.   The problem in  this case is that  the plaintiff                                                               
waited beyond the two-year period.                                                                                              
                                                                                                                                
CHAIR  GATTO summarized  that the  House  State Affairs  Standing                                                               
Committee has held  discussions on whether fees  should appear as                                                               
though they are taxes.                                                                                                          
                                                                                                                                
12:30:35 PM                                                                                                                   
                                                                                                                                
CHAIR GATTO directed the committee's  attention to the next case:                                                               
West v.State, 248 P.3d 689 (Alaska 2010).                                                                                     
                                                                                                                                
12:31:23 PM                                                                                                                   
                                                                                                                                
MS.  MISCHEL reviewed  the  case for  purposes  of the  oversight                                                               
report.   She said her  recommendation is for the  legislature to                                                               
review the case  to determine if the court  correctly applied the                                                               
intensive game management statute.   She explained that the court                                                               
primarily addressed  the question of whether  the sustained yield                                                               
requirement in  Article VIII of  the Alaska  Constitution applies                                                               
to predators and  the court determined that it did.   She offered                                                               
her  belief that  Alaska is  the only  state in  the U.S.  with a                                                               
sustained  yield constitutional  provision.   The statute  merely                                                               
implements the sustained  yield requirement.  In  addition to the                                                               
statutes, the  Board of Game  has administrative  regulations and                                                               
predator control plans under scrutiny.   The Alaska Supreme Court                                                               
determined  that the  plans, regulations,  and  the statutes  all                                                               
correctly   implemented   the  constitutional   sustained   yield                                                               
principle  as  it applies  to  control  of  wolves and  bears  in                                                               
specific  game   management  units.    The   court  analyzed  the                                                               
intensive game  management statutes in  AS 16.05.255 in  the same                                                               
way  it analyzed  the constitutional  provisions.   She concluded                                                               
that  if the  legislature  is dissatisfied  with  the outcome  or                                                               
finds it is  contrary to legislative intent,  the appropriate fix                                                               
would involve a constitutional amendment.                                                                                       
                                                                                                                                
MS. MISCHEL said essentially, the  court upheld both the predator                                                               
control plans that allow for  aerial wolf hunting and high number                                                               
of bear  yields in certain  game management units to  allow moose                                                               
and  caribou populations  to recover.   The  regulations provided                                                               
the same level of detail.   The Alaska Supreme Court decided that                                                               
the  sustained yield  applied to  predator  populations but  also                                                               
that  the   Board  of  Game   implemented  the   sustained  yield                                                               
principles even though the regulations  adopted subsequent to the                                                               
2006  decision  invalidating  those   regulations  took  out  the                                                               
sustained yield language  with respect to predator  control.  The                                                               
court found  as a factual matter  that the Board of  Game adhered                                                               
to sustained yield principles without actually saying it.                                                                       
                                                                                                                                
12:35:20 PM                                                                                                                   
                                                                                                                                
CHAIR GATTO asked whether the  question of the Endangered Species                                                               
Act entered into any of the  testimony.  He related a scenario in                                                               
which there  was a  threatened moose population  due to  too many                                                               
bears or  wolves.   Since the  aforementioned endangers  the prey                                                               
population, he  asked whether someone could  apply the Endangered                                                               
Species Act if the state needs to reduce bears and wolves.                                                                      
                                                                                                                                
12:35:51 PM                                                                                                                   
                                                                                                                                
MS. MISCHEL responded that the issue did not arise in this case.                                                                
                                                                                                                                
CHAIR GATTO recalled that predator  pressures threatened moose in                                                               
certain game  management units.   Although as  a whole  moose are                                                               
not endangered species,  he recalled the situation  in the Arctic                                                               
in  which the  total number  of  polar bears  was increasing  but                                                               
specific  populations  were  not.   The  Endangered  Species  Act                                                               
allowed  the  removal of  a  portion  of  the  land the  size  of                                                               
California as the normal range to  protect them from hunting.  He                                                               
recalled Yenlo  Hills moose [counts] used  to be 100 but  are now                                                               
1,  so ultimately  the  moose will  disappear in  the  area.   He                                                               
opined  that it  would make  sense to  protect the  population in                                                               
specific areas as well as the overall population.                                                                               
                                                                                                                                
MS.  MISCHEL explained  that the  Alaska Supreme  Court generally                                                               
agrees  with the  principle, that  certain game  management units                                                               
and  range  of  the  animals   were  significant  in  determining                                                               
sustained yield.   While the  sustained yield principle  is being                                                               
interpreted  as  a constitutional  matter  in  terms of  predator                                                               
population, the  primary reason the  court found that  the aerial                                                               
killing of  wolves and  bears in  specified units  was consistent                                                               
with  that   principle  is   the  court   also  found   that  the                                                               
constitution  and the  statutory  framework  for sustained  yield                                                               
allowed  for  preferences  for  prey  populations  over  predator                                                               
populations.   She  acknowledged  part  of that  had  to do  with                                                               
beneficial  use   and  the  Board   of  Game  found   that  human                                                               
consumption  was  the  highest  and  best  use  of  wildlife,  in                                                               
general. In  response to  a question from  Chair Gatto,  she said                                                               
the  term,  "hunting"  can  apply   to  both  predator  and  prey                                                               
populations.    The  intensive   game  management  decisions  and                                                               
statutes allowed for a higher number  of predators to be taken in                                                               
some  units  than some  biologists  have  deemed as  sustainable.                                                               
However,  the  court  found  that   the  environmental  value  of                                                               
wildlife viewing  over human consumption  did not come up  at the                                                               
Alaska Supreme  Court level although  it may have been  raised at                                                               
the trial court level.                                                                                                          
                                                                                                                                
12:40:24 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  KELLER  asked  for  the  reason  for  legislative                                                               
review.                                                                                                                         
                                                                                                                                
MS. MISCHEL  said that one of  the four reasons for  oversight of                                                               
cases  for legislative  consideration include  whether the  court                                                               
has modified or  revised common law of the  state, which happened                                                               
in this case.                                                                                                                   
                                                                                                                                
CHAIR  GATTO noted  that the  opinion states  in conclusion,  "We                                                               
AFFIRM the  superior court's  ruling regarding  the applicability                                                               
of Alaska's sustained yield clause  to predator populations ...."                                                               
The court  went on  to reverse  a ruling that  does not  apply to                                                               
predator populations.                                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG  inquired as to whether  the case needed                                                               
to be referred to the House Resources Standing Committee.                                                                       
                                                                                                                                
CHAIR GATTO offered his belief that the case has been decided.                                                                  
                                                                                                                                
12:42:34 PM                                                                                                                   
                                                                                                                                
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section, Criminal  Division, Department of Law  (DOL), brought up                                                               
a  recent challenge  to the  bail schedule  revisions enacted  in                                                               
2010.  She  reported that a lawsuit was filed  the day before the                                                               
effective  date  of  the  legislation   by  a  group  of  defense                                                               
attorneys, the  Alaska Association  of Criminal  Defense Lawyers,                                                               
and three  named defense lawyers  versus the State of  Alaska and                                                               
Dan  Sullivan,  in  his  capacity   as  attorney  general.    The                                                               
complaint  was for  both declaratory  and  injunctive relief  and                                                               
sought  a  temporary restraining  order  to  stop enforcement  of                                                               
several provisions  of the  bail revision.   The suit  claimed 10                                                               
areas of the  bail revision law were defective.   The first was a                                                               
claim that the presumption of  dangerousness and flight risks had                                                               
the effect  of denying  the right  to bail  as guaranteed  by the                                                               
constitution.   Another  claim asserted  that the  requirement of                                                               
$250,000   bail  for   a   second   offense  of   methamphetamine                                                               
manufacturing  charges  violated  the  person's  right  to  bail.                                                               
Another claim  asserted that the  cooling off period  in domestic                                                               
violence,  which  prohibited  a  judge  from  allowing  a  person                                                               
charged with  a crime involving domestic  violence from returning                                                               
to  the home  of  the  victim for  20  days,  violated the  equal                                                               
protection clause of the constitution.                                                                                          
                                                                                                                                
MS. CARPENETI explained the Department  of Law's response, in the                                                               
case, was  that the plaintiff's  had not  established irreparable                                                               
harms since  the plaintiffs, the  lawyers, argued that  they were                                                               
not  representing any  particular defendants.   The  lawyers were                                                               
bringing this action on their  own without having a person denied                                                               
bail or  having a personal interest  in the outcome of  the case.                                                               
The  superior court  denied the  temporary restraining  order for                                                               
all  except  for  the  20-day cooling  off  period  for  domestic                                                               
violence defendants.   When the  legislature passed  the Domestic                                                               
Violence Prevention  Act in  1998, it  stipulated that  the court                                                               
may  not  allow a  person  charged  with  the crime  of  domestic                                                               
violence  to return  to  the  home at  all  while  the person  is                                                               
released on  bail.   That provision was  challenged in  a lawsuit                                                               
decided  in  2006, the  Williams  case,  in  which the  Court  of                                                             
Appeals decided  the provision violated the  constitutional right                                                               
to  equal protection  of the  law.   Thus,  when the  legislature                                                               
rewrote the bail statutes, it changed  it to a 20-day cooling off                                                               
period.    The trial  court  found  that  the provision  was  too                                                               
similar to one found invalid in  the Williams case so it issued a                                                             
temporary restraining  order from applying that  provision of the                                                               
law, not only for that court  but for all trial courts in Alaska.                                                               
She reported that the trial court  ruled in favor of the state in                                                               
all other aspects in terms of the temporary restraining order.                                                                  
                                                                                                                                
MS. CARPENETI related that both  parties petitioned to the Alaska                                                               
Supreme  Court  from the  trial  court's  decision.   The  Alaska                                                               
Supreme  Court  vacated  the  superior  court's  decision  as  it                                                               
applied to  other judicial  officers of the  state.   She offered                                                               
the theory that the trial court  can decide for its court but may                                                               
not  impose that  decision  on  other courts.    Thus, the  court                                                               
vacated the decision and denied  the petitions in other respects.                                                               
The  case  returned   to  the  trial  court  for   the  issue  of                                                               
declaratory relief  where the superior court  granted the state's                                                               
motion to  dismiss based on  lack of standing by  the plaintiffs.                                                               
The  order was  dated  April 12,  2011, and  the  lawyers made  a                                                               
motion for reconsideration, which was  denied May 23, 2011, and a                                                               
final judgment was entered July  18, 2011, vacating the temporary                                                               
restraining order  and granting  final judgment  in favor  of the                                                               
state.   She said  at this  point the decision  has not  yet been                                                               
appealed  and  the  timeline  has run  out,  although  there  are                                                               
provisions for  the court to  relax the  deadline up to  60 days.                                                               
She said there  is not any legislative action  needed but offered                                                               
to answer any questions.                                                                                                        
                                                                                                                                
12:49:19 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG  related  his  understanding  that  the                                                               
ultimate result was  that the provision by the  superior court on                                                               
the 20-day cooling off period  was subsequently set aside because                                                               
the plaintiffs didn't have standing.                                                                                            
                                                                                                                                
MS.  CARPENETI clarified  that it  was vacated  as it  applied to                                                               
other  superior court  judges and  officers.   Later, the  entire                                                               
case was dismissed  for lack of standing by  the defense lawyers.                                                               
In response to a question, she agreed the provision was denied.                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG concluded then  that the only order that                                                               
would  potentially  be out  there  was  the  20 day  cooling  off                                                               
period.                                                                                                                         
                                                                                                                                
MS. CARPENETI agreed.  She  added that other superior courts have                                                               
made decisions based on challenges  made to the bail revision law                                                               
and have  upheld that law, although  they may be appealed  to the                                                               
Court  of Appeals.   However,  at  this point  other judges  have                                                               
decided  to uphold  the  bail revision  challenges  made to  them                                                               
individually.                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG  remarked  that   it  would  likely  be                                                               
premature for the committee to take any action.                                                                                 
                                                                                                                                
MS. CARPENETI  concurred, but related the  department's desire to                                                               
inform the legislature since it was a substantial challenge.                                                                    
                                                                                                                                
12:51:06 PM                                                                                                                   
                                                                                                                                
CHAIR GATTO,  with respect to  vehicle and document  fees, stated                                                               
that the amount of paperwork is a  quarter of an inch thick, so a                                                               
person may  not notice the  document fee.   He asked  whether the                                                               
committee  should  determine  that  the  statute  of  limitations                                                               
begins when a person discovers the illegal fee.                                                                                 
                                                                                                                                
MS.  CARPENETI declined  to  respond.   She  then  referred to  a                                                               
second  lawsuit   recently  decided,  the   American  Booksellers                                                             
Foundation et al v. Daniel  Sullivan, in his capacity as attorney                                                             
general.                                                                                                                        
                                                                                                                                
12:53:30 PM                                                                                                                   
                                                                                                                                
MS.   CARPENETI  noted   that  this   involves  statute   changes                                                               
prohibiting  the distribution  of  indecent  materials to  minors                                                               
under  AS 11.61.128.   She  explained that  although the  changes                                                               
were adopted  in Senate  Bill 222, a  substantial amount  of work                                                               
was  done in  its companion  bill, House  Bill 298  in the  House                                                               
Judiciary  Standing Committee.    She related  there are  several                                                               
ironies since Senate  Bill 222 narrowed the scope  of the statute                                                               
prohibiting the  distribution of  indecent materials to  a minor.                                                               
She explained that  the bill prohibited a person over  the age of                                                               
18 years of  age from distributing material  that depicts certain                                                               
prescribed  conduct,  such as  sexual  penetration,  to a  person                                                               
under 16 or to a person  the defendant believes is under 16 years                                                               
of age,  and the material must  be harmful to minors.   The House                                                               
Judiciary Standing Committee added the  element that the state is                                                               
required  to prove  beyond a  reasonable doubt  to AS  11.61.128,                                                               
which is  why the  work done in  the committee  actually narrowed                                                               
the effect  of the  law.   The standard  for proving  whether the                                                               
material  is  harmful is  a  three-part  definition, which  first                                                               
requires the state to prove  that the average individual applying                                                               
contemporary community  standards would  find the  material taken                                                               
as a  whole, appeals to the  prurient interest in sex  in persons                                                               
under 16  years of age.   Second, the  state would have  to prove                                                               
that a reasonable person would find  that the material taken as a                                                               
whole lacks serious,  artistic, literary, educational, political,                                                               
or scientific  value for persons under  16 years of age.   Third,                                                               
the  state would  have to  prove the  material depicts  actual or                                                               
simulated  conduct in  a way  that is  patently offensive  to the                                                               
prevailing standards in the adult  community with respect to what                                                               
is suitable for a person under  16 years of age.  She highlighted                                                               
that  [the  aforementioned]  element   was  added  in  the  House                                                               
Judiciary Standing  Committee to  what the  state is  required to                                                               
prove when prosecuting a person under this statute.                                                                             
                                                                                                                                
MS. CARPENETI pointed out several  things that were disappointing                                                               
in the  process.  She  recalled a representative from  the Alaska                                                               
Civil  Liberties Union  (ACLU) gave  an opinion  that he  thought                                                               
with  the   additions  made  in  the   House  Judiciary  Standing                                                               
Committee   that    the   statute   would    probably   withstand                                                               
constitutional  muster.   Another  disappointment  was that  this                                                               
statute was  litigated in federal  court and the state  had asked                                                               
the federal district judge to  certify the question to the Alaska                                                               
Supreme Court asking  them to interpret the  statute according to                                                               
Alaska  law.   Unfortunately,  the court  declined  to take  that                                                               
question, she said.                                                                                                             
                                                                                                                                
12:57:12 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked if  the federal judge  refused to                                                               
certify it or  did the Alaska Supreme Court refuse  to accept the                                                               
certification.                                                                                                                  
                                                                                                                                
MS.  CARPENETI responded  that the  federal  judge certified  the                                                               
question  and the  Alaska Supreme  Court refused  to address  the                                                               
matter  without opinion,  which she  opined wasn't  that unusual.                                                               
She said  that no  rationale was  given.  The  main claim  of the                                                               
lawsuit was that the statute  was overbroad, which occurs when it                                                               
prohibits constitutionally  protected conduct as well  as conduct                                                               
that can be  legitimately regulated by the state.   The claim was                                                               
that  contemporary  community  standards  of  the  definition  of                                                               
"harmful to  minors" was overbroad  and vague, that there  was no                                                               
distinction  between what  might  be harmful  to  an older  minor                                                               
still under  the age of 16  as compared to a  younger minor, that                                                               
it was  not the  least restrictive  alternative to  regulate this                                                               
behavior and that the culpable  mental states were unclear and it                                                               
was not absolutely clear the  defendant must know the contents of                                                               
the material  that he/she is  distributing.  And it  wasn't clear                                                               
that the defendant knew or was  reckless regarding the age of the                                                               
recipient of  the materials.   There  was also  a claim  that the                                                               
statute  inhibited interstate  commerce,  which  she thought  was                                                               
unusual.                                                                                                                        
                                                                                                                                
MS. CARPENETI related  that the state's response  was that Senate                                                               
Bill  222 narrows  the focus  of AS  11.61.128, the  state has  a                                                               
compelling interest in  the safety of its children,  and that the                                                               
statute  was   narrowly  tailored   and  the   least  restrictive                                                               
alternative  under  the  circumstances since  it  only  restricts                                                               
certain specified images to be  distributed.  The department felt                                                               
the  "harmful  to minors"  definition  that  was adopted  by  the                                                               
legislature met  the U.S. Supreme  Court decisions of  Miller and                                                               
Ginsburg  in upholding  the definition.   The  state also  argued                                                               
that  the  claim the  statutes  didn't  differentiate between  an                                                               
older  group of  minors  versus  a younger  group  of minors  was                                                               
irrelevant  since if  it  isn't  harmful to  a  certain group  of                                                               
minors it would not be found harmful  to minors.  In terms of the                                                               
Commerce  Clause, the  state's argument  was that  the state  has                                                               
jurisdiction to protect its citizens  and even if the defendant's                                                               
conduct is  carried out  outside the state,  the state  still has                                                               
jurisdiction if  the victim is in  Alaska.  She pointed  out that                                                               
is statutory and decisional law.                                                                                                
                                                                                                                                
MS. CARPENETI related  the Alaska Supreme Court  decided that the                                                               
court has  a compelling interest  in the safety of  its children,                                                               
and  it  upheld  the  "harmful   to  minors"  definition  finding                                                               
indicating  the  definition  does  meet the  U.S.  Supreme  Court                                                               
decision in  Miller and  Ginsburg.   However, it  ultimately held                                                               
that the  statute was overbroad and  prohibited constitutionally-                                                               
protected  conduct in  addition to  conduct not  protected.   She                                                               
said  it invalidated  the statute  not only  as the  language had                                                               
been changed  in Senate Bill 222,  but as it had  been before the                                                               
amendments  to  the  bill.   The  department  will  consider  its                                                               
options,  but will  likely  suggest changes  to  the statutes  to                                                               
address this issue  since currently the state  cannot enforce the                                                               
law, she said.                                                                                                                  
                                                                                                                                
MS.  CARPENETI, in  response to  Chair Gatto,  answered that  the                                                               
statute prevented distribution of  materials to persons under 16.                                                               
One concern raised was that  minors ages 13-14 may have different                                                               
interests than minors ages 7-8.   She reiterated that the state's                                                               
argument was that if the materials  were not harmful to any group                                                               
of minors  it would  not be  deemed harmful to  any minors.   She                                                               
clarified  that the  Alaska Supreme  Court upheld  the definition                                                               
she believed was added in  the House Judiciary Standing Committee                                                               
requiring that in  order for materials to be illegal  they had to                                                               
be considered harmful to minors.                                                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG inquired  as  to whether  the state  is                                                               
considering an appeal.                                                                                                          
                                                                                                                                
MS.  CARPENETI  responded  that  the Department  of  Law  is  not                                                               
planning  to appeal  the decision  since  it does  not think  its                                                               
chances are good to prevail in the Court of Appeals.                                                                            
                                                                                                                                
1:03:19 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he had  not considered  the court                                                               
rule that  allows a federal court  to refer a question  of law to                                                               
the Alaska  Supreme Court.   Currently, the Alaska  Supreme Court                                                               
has  discretion   on  whether  to   accept  the  referral.     He                                                               
acknowledged that he  has not personally been involved  in a case                                                               
where  that issue  arose.   However,  he  questioned whether  the                                                               
legislature  or  perhaps  the court's  Appellate  Rules  Advisory                                                               
Committee ought to address establishing  standards.  In instances                                                               
in which the federal court  has considered it an important enough                                                               
question  to  refer  to  the Alaska  Supreme  Court,  he  further                                                               
questioned whether  the court should have  complete discretion on                                                               
the referral.                                                                                                                   
                                                                                                                                
MS. CARPENETI  acknowledged that  she is  not that  familiar with                                                               
this area  of the law.   She indicated a willingness  to research                                                               
the issue further.                                                                                                              
                                                                                                                                
1:05:45 PM                                                                                                                    
                                                                                                                                
MS. CARPENETI  then referred  to a case  that involved  a person,                                                               
Mr.  Bridge, who  was  charged  and convicted  of  escape in  the                                                               
second degree  in violation  of AS  11.56.310, which  prohibits a                                                               
person  from removing  him/herself from  a correctional  facility                                                               
while  under official  detention.   Mr. Bridge  had been  charged                                                               
with driving  with a license  suspended, which is  a misdemeanor.                                                               
He was  unable to make  the bail set by  the court and  since the                                                               
Fairbanks jail  was full he  was placed in the  Northstar Center,                                                               
which is  a halfway house or  is used to house  people in similar                                                               
circumstances.    Mr.  Bridge eventually  walked  away  from  the                                                               
Northstar Center and  was charged and convicted of  escape in the                                                               
second  degree.   The conviction  was  appealed to  the court  of                                                               
appeals,  which   reversed  the  conviction,  finding   that  the                                                               
definition  of "correctional  center"  in law  is  defined as  "a                                                               
correctional  facility  or  premises   used  for  confinement  of                                                               
persons  under official  detention."   She related  that although                                                               
the  term  "official  detention"   is  defined  in  statute  very                                                               
broadly, the term "confinement" is  not.  Although the Mr. Bridge                                                               
was  told he  was  not to  leave, the  Northstar  Center was  not                                                               
gated, or guarded, and did  not have any constraint mechanisms in                                                               
place.    Additionally,  the  staff   had  been  trained  to  not                                                               
intervene except to call the  police, so his housing at Northstar                                                               
Center was  not considered constituting  confinement.   Thus, the                                                               
conviction  was  reversed.    Ms.  Carpeneti  reported  that  the                                                               
Department of  Law has  appointed a  committee of  prosecutors to                                                               
review  the  case  and  make   recommendations,  but  hasn't  yet                                                               
formulated any recommendations yet.                                                                                             
                                                                                                                                
1:09:09 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG, referring  to the  opinion that  was a                                                               
2:1 decision, related his understanding  the DOL is not appealing                                                               
the decision.                                                                                                                   
                                                                                                                                
MS. CARPENETI  answered that the state  does not have a  right to                                                               
appeal.   Although  the state  could petition  for review  in the                                                               
Alaska Supreme Court, it will not do so.                                                                                        
                                                                                                                                
1:09:50 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG suggested  that the  committee ask  the                                                               
attorney general to provide results of its review.                                                                              
                                                                                                                                
REPRESENTATIVE HOLMES concurred.                                                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG  then referred  to  the  case Hertz  v.                                                             
Carothers, 225  P.3d 471 (Alaska 2010)  located on page 7  of the                                                             
December  2010 Report  to the  Twenty-Seventh Legislature  that's                                                               
included in members' packets to. He read:                                                                                       
                                                                                                                                
     The state was awarded  attorneys' fees after Hertz lost                                                                    
     a lawsuit  against the state.   The state  attempted to                                                                    
     execute on Hertz's prisoner  trust account and directed                                                                    
     the  Alaska  State  Troopers  to   serve  the  writ  of                                                                    
     execution  on   the  superintendent  of   Spring  Creek                                                                    
     Correctional  Center and  the notices  of execution  on                                                                    
     Hertz.  The trooper served  all of the paperwork on the                                                                    
     superintendent  and  did  not   serve  Hertz  with  any                                                                    
     paperwork.   Sometime later the  state faxed  copies of                                                                    
     the  paperwork to  the institution  and a  guard served                                                                    
     the  faxed   paperwork  on   Hertz.     Although  Hertz                                                                    
     eventually  received actual  notice  of the  execution,                                                                    
     the Alaska Supreme Court found  that Hertz had not been                                                                    
     properly served  as required by  statute or  court rule                                                                    
     and the execution could not proceed.                                                                                       
                                                                                                                                
     Hertz v. Carothers, 225 P.3d 571 (Alaska 2010)                                                                             
                                                                                                                                
     Legislative review  is recommended to determine  if the                                                                    
     legislature  should   provide  specific   guidance  and                                                                    
     procedures  for  service  of process  on  prisoners  in                                                                    
     state  correctional   facilities,  or   should  include                                                                    
     prison guards in the definition  of "peace officer" for                                                                    
     purpose of process under Rule 4, Alaska Rules of Civil                                                                     
     Procedure.                                                                                                                 
                                                                                                                                
1:12:35 PM                                                                                                                    
                                                                                                                                
GERALD  LUCKHAUPT,  Assistant  Revisor of  Statutes,  Legislative                                                               
Legal   Counsel,  Legislative   Legal   and  Research   Services,                                                               
Legislative  Affairs Agency  (LAA), explained  that he  wrote the                                                               
review  since  he thought  the  legislature  should consider  the                                                               
matter.   The  court rules  that  pertain to  service of  process                                                               
don't  envision   service  of  process   on  a  prisoner.     The                                                               
legislature  might wish  to  address that  in  order to  preclude                                                               
similar situations from arising.                                                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG  concurred.    He  suggested  that  the                                                               
committee request Mr. Luckhaupt  make recommendations and to send                                                               
the  commissioner  of the  Department  of  Corrections a  similar                                                               
letter  asking for  recommendations.   He further  suggested that                                                               
the House  Judiciary Standing Committee  may wish to  introduce a                                                               
bill addressing the matter.                                                                                                     
                                                                                                                                
1:14:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LYNN  asked  what  ramifications  broadening  the                                                               
definition of "peace officer" may have.                                                                                         
                                                                                                                                
CHAIR  GATTO  responded that  the  suggestion  is to  add  prison                                                               
guards to the definition of "peace officer."                                                                                    
                                                                                                                                
REPRESENTATIVE LYNN  expressed concern that to  add prison guards                                                               
to the  definition of "peace  officer" may have  ramifications in                                                               
other circumstances in state law.                                                                                               
                                                                                                                                
1:14:55 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  suggested that instead of  changing the                                                               
definition of "peace officer" one  way to address the issue would                                                               
simply be  to clarify that the  service of process could  be done                                                               
by a peace officer or a correctional officer.                                                                                   
                                                                                                                                
CHAIR  GATTO  acknowledged  that  if  the  definition  of  "peace                                                               
officer" was broadened it could affect contract negotiations.                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  reiterated that  the change  would only                                                               
be made to Rule 4, Alaska Rules of Civil Procedure.                                                                             
                                                                                                                                
MR.  LUCKHAUPT  clarified that  he  was  not suggesting  a  broad                                                               
change  in definition  of "peace  officer" but  instead would  be                                                               
referring directly to service of  process.  He clarified that the                                                               
definition  of  "peace  officer"  for  purposes  of  the  serving                                                               
process  on a  prisoner  could include  correctional officers  or                                                               
could refer to them separately.                                                                                                 
                                                                                                                                
1:16:29 PM                                                                                                                    
                                                                                                                                
MR. LUCKHAUPT referred back to  Ms. Carpeneti's remarks and noted                                                               
that  the case  on official  detention will  be in  the oversight                                                               
report for the  coming year.  He recommended review  of the case,                                                               
noting   the  discussion   in  the   dissent  provides   relevant                                                               
information on how the case should  have been resolved.  He hoped                                                               
the committee could address the  case during the upcoming regular                                                               
legislative session.                                                                                                            
                                                                                                                                
1:17:59 PM                                                                                                                    
                                                                                                                                
QUINLAN  STEINER,  Director,   Central  Office,  Public  Defender                                                               
Agency (PDA),  Department of  Administration (DOA),  stated, with                                                               
respect  to   the  issue   of  Mr.   Bridge's  case,   that  some                                                               
inconsistencies in  the level  of crime for  escapes exists.   He                                                               
related that Mr. Bridge was  originally convicted of a "B" felony                                                               
for  walking away  from  what was  essentially  a halfway  house.                                                               
However, if the behavior had  occurred in a courtroom with public                                                               
safety  officers  present, the  offense  would  have been  a  "C"                                                               
felony.  He stated that Mr.  Bridge was ultimately convicted of a                                                               
misdemeanor.   He  suggested that  the  consistency be  addressed                                                               
when  the legislature  reviews the  case.   He characterized  the                                                               
discrepancy as a  quirk in the current language.   In response to                                                               
a question,  he answered that electronic  monitoring is typically                                                               
used for misdemeanor cases.  He  elaborated that the level of the                                                               
escape would  depend on the  circumstances and whether  the crime                                                               
included use  of a  weapon to  escape.  Again,  in this  case Mr.                                                               
Bridge had been  initially charged with a  misdemeanor, which was                                                               
advanced to a  "B" felony due to  the escape, but if  he had been                                                               
in court or  incarcerated the escape would have  been advanced to                                                               
a "C" felony.                                                                                                                   
                                                                                                                                
1:21:00 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  suggested  that the  committee  obtain                                                               
more information on the escape statutes for consistency.                                                                        
                                                                                                                                
MR. LUCKHAUPT agreed to do so.                                                                                                  
                                                                                                                                
REPRESENTATIVE HOLMES recalled Ms. Carpeneti had a group of                                                                     
prosecutors reviewing the Bridge case and she hoped that the                                                                    
public defender would also be included in the discussion.                                                                       
                                                                                                                                
MS. CARPENETI, in response to a comment, agreed to include the                                                                  
public defender in the discussions.                                                                                             
                                                                                                                                
1:23:20 PM                                                                                                                    
                                                                                                                              
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no further business before the committee, the House                                                                 
Judiciary Standing Committee meeting was adjourned at 1:23 p.m.                                                                 

Document Name Date/Time Subjects
Anderson v Alyeska Pipeline Service Co. - 234 P.3d 1282.pdf HJUD 9/12/2011 11:00:00 AM
Anderson - Legal Services Report.pdf HJUD 9/12/2011 11:00:00 AM
Anderson - AS 23.30.045.pdf HJUD 9/12/2011 11:00:00 AM
Anderson - AS 23.30.055.pdf HJUD 9/12/2011 11:00:00 AM
Mat-Su Valley Medical Center v Advanced Pain Centers of Alaska - 218 P.3d 698.pdf HJUD 9/12/2011 11:00:00 AM
Mat-Su Valley Medical Center - Legal Services Report.pdf HJUD 9/12/2011 11:00:00 AM
Mat-Su Valley Medical Center - AS 18.07.091.pdf HJUD 9/12/2011 11:00:00 AM
Planned Parenthood v Campbell - 232 P.3d 725.pdf HJUD 9/12/2011 11:00:00 AM
Planned Parenthood - Legal Services Report.pdf HJUD 9/12/2011 11:00:00 AM
Planned Parenthood - AS 15.45.090 - 15.45.100.pdf HJUD 9/12/2011 11:00:00 AM
Weimer v Continental Care and Truck LLC - 237 P.3d 610.pdf HJUD 9/12/2011 11:00:00 AM
Weimer - Legal Services Report.pdf HJUD 9/12/2011 11:00:00 AM
Weimer - AS 45.25.400.pdf HJUD 9/12/2011 11:00:00 AM
Weimer - AS 45.50.471.pdf HJUD 9/12/2011 11:00:00 AM
Weimer - AS 45.50.531.pdf HJUD 9/12/2011 11:00:00 AM
West v State - 248 P.3d 689.pdf HJUD 9/12/2011 11:00:00 AM
West - Legal Services Report.pdf HJUD 9/12/2011 11:00:00 AM
West - Art. VIII sec. 4 AK Const.pdf HJUD 9/12/2011 11:00:00 AM
West - AS 16.05.255.pdf HJUD 9/12/2011 11:00:00 AM