Legislature(1993 - 1994)
03/29/1993 01:00 PM House JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE March 29, 1993 1:00 p.m. MEMBERS PRESENT Representative Brian Porter, Chairman Representative Jeannette James, Vice-Chair Representative Pete Kott Representative Gail Phillips Representative Cliff Davidson Representative Jim Nordlund MEMBERS ABSENT Representative Joe Green COMMITTEE CALENDAR HB 41 "An Act relating to civil liability for skiing accidents, operation of ski areas, and duties of ski area operators and skiers; and providing for an effective date." CSHB 41 (JUD) PASSED OUT WITH A DO PASS RECOMMENDATION HB 147 "An Act relating to the disclosure of information by an employer about the job performance of an employee or former employee." CSHB 147 (JUD) PASSED OUT WITH A DO PASS RECOMMENDATION HJR 3 Proposing amendments to the Constitution of the State of Alaska limiting tenure in the legislature. CSHJR 3 (JUD) PASSED OUT WITH NO RECOMMENDATION HB 61 "An Act relating to the offense of operating a motor vehicle, aircraft, or watercraft while intoxicated; and providing for an effective date." CSHB 61 (JUD) PASSED OUT WITH A DO PASS RECOMMENDATION WITNESS REGISTER GAYLE HORETSKI Committee Counsel House Judiciary Committee State Capitol, Room 120 Juneau, Alaska 99801-1182 Phone: 465-6841 Position Statement: Gave an overview of CSHB 41 (JUD), CSHB 147 (JUD), and CSHJR 3 (JUD); made suggestions regarding HB 61 GARY MENDIVIL Eaglecrest Ski Area 155 South Seward Street Juneau, Alaska 99801 Phone: 586-5284 Position Statement: Answered questions related to HB 41 MITCH GRAVO Alyeska Ski Resort 2550 Denali, 17th Floor Anchorage, Alaska 99503 Phone: 272-6474 Position Statement: Discussed HB 41 RAGA ELIM Special Assistant to the Commissioner Department of Natural Resources 400 Willoughby Avenue Juneau, Alaska 99801 Phone: 465-2400 Position Statement: Answered questions related to HB 41 GRETCHEN PENCE Special Assistant to the Commissioner Department of Public Safety P. O. Box 111200 Juneau, Alaska 99811 Phone: 465-4322 Position Statement: Provided information related to HB 41 REPRESENTATIVE JIM NORDLUND Alaska State Legislature State Capitol Court Building, Room 608 Juneau, Alaska 99801 Phone: 465-4968 Position Statement: Prime sponsor of HB 61 MARGOT KNUTH Assistant Attorney General Department of Law Criminal Division P. O. Box 110300 Juneau, Alaska 99811-0300 Phone: 465-3428 Position Statement: Supported .08 DWI offense, but suggested deleting section 3 of HB 61 JUANITA HENSLEY Chief, Driver Services Division of Motor Vehicles Department of Public Safety P. O. Box 20020 Juneau, Alaska 99802 Phone: 465-4335 Position Statement: Supported .08 DWI offense, but suggested deleting section 3 of HB 61 PREVIOUS ACTION BILL: HB 41 SHORT TITLE: CIVIL LIABILITY FOR SKIING ACCIDENTS BILL VERSION: SPONSOR(S): REPRESENTATIVE(S) PHILLIPS,Hudson,Porter, Toohey,Mulder TITLE: "An Act relating to civil liability for skiing accidents, operation of ski areas, and duties of ski area operators and skiers; and providing for an effective date." JRN-DATE JRN-PG ACTION 01/11/93 34 (H) READ THE FIRST TIME/REFERRAL(S) 01/11/93 35 (H) LABOR & COMMERCE, JUDICIARY, FINANCE 01/26/93 (H) L&C AT 03:00 PM CAPITOL 17 01/26/93 (H) MINUTE(L&C) 01/29/93 183 (H) COSPONSOR(S): TOOHEY 02/04/93 (H) L&C AT 03:00 PM CAPITOL 17 02/09/93 (H) L&C AT 03:00 PM CAPITOL 17 02/09/93 (H) MINUTE(L&C) 02/10/93 285 (H) L&C RPT CS(L&C) 5DP 1DNP 02/10/93 285 (H) DP: PORTER, GREEN, MULDER, MACKIE,HUDSON 02/10/93 285 (H) DNP: SITTON 02/10/93 285 (H) -3 ZERO FNS (DNR, COURT, DCED) 2/10/93 02/10/93 285 (H) -2 ZERO FNS (LAW, LABOR) 2/10/93 02/10/93 312 (H) COSPONSOR(S): MULDER 03/05/93 (H) JUD AT 01:00 PM CAPITOL 120 03/05/93 (H) MINUTE(JUD) 03/29/93 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 147 SHORT TITLE: EMPLOYER'S LIABILITY FOR REFERENCE INFO BILL VERSION: SPONSOR(S): REPRESENTATIVE(S) MACLEAN,Phillips,Porter TITLE: "An Act relating to the disclosure of information by an employer about the job performance of an employee or former employee." JRN-DATE JRN-PG ACTION 02/10/93 292 (H) READ THE FIRST TIME/REFERRAL(S) 02/10/93 292 (H) L&C, JUDICIARY 02/25/93 (H) L&C AT 03:00 PM CAPITOL 17 02/25/93 (H) MINUTE(L&C) 03/01/93 480 (H) L&C RPT 5DP 03/01/93 481 (H) DP: PORTER, MACKIE,WILLIAMS, GREEN,HUDSON 03/01/93 481 (H) -3 ZERO FNS (ADM, COURT, LAW) 3/1/93 03/08/93 (H) JUD AT 01:00 PM CAPITOL 120 03/08/93 (H) MINUTE(JUD) 03/10/93 (H) JUD AT 01:00 PM CAPITOL 120 03/10/93 (H) MINUTE(JUD) 03/29/93 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HJR 3 SHORT TITLE: LIMITING TERMS OF LEGISLATORS BILL VERSION: SPONSOR(S): REPRESENTATIVE(S) MARTIN,Kott TITLE: Proposing amendments to the Constitution of the State of Alaska limiting tenure in the legislature. JRN-DATE JRN-PG ACTION 01/04/93 22 (H) PREFILE RELEASED 01/11/93 22 (H) READ THE FIRST TIME/REFERRAL(S) 01/11/93 22 (H) STATE AFFAIRS, JUDICIARY, FINANCE 01/26/93 (H) STA AT 08:00 AM CAPITOL 102 01/26/93 (H) MINUTE(STA) 01/26/93 (H) MINUTE(STA) 01/26/93 (H) MINUTE(STA) 01/26/93 (H) MINUTE(STA) 01/30/93 (H) STA AT 08:00 AM CAPITOL 102 01/30/93 (H) MINUTE(STA) 02/06/93 (H) STA AT 08:00 AM CAPITOL 102 02/09/93 (H) STA AT 08:00 AM CAPITOL 102 02/09/93 (H) MINUTE(STA) 02/11/93 317 (H) STA RPT CS(STA) NEW TITLE 5DP 2NR 02/11/93 318 (H) DP: VEZEY, OLBERG, G.DAVIS, SANDERS,KOTT 02/11/93 318 (H) NR: ULMER, B.DAVIS 02/11/93 318 (H) -FISCAL NOTE (GOV) 2/11/93 02/09/93 (H) MINUTE(STA) 02/11/93 (H) STA AT 08:00 AM CAPITOL 102 02/11/93 (H) MINUTE(STA) 02/13/93 (H) STA AT 08:00 AM CAPITOL 102 03/10/93 (H) JUD AT 01:00 PM CAPITOL 120 03/10/93 (H) MINUTE(JUD) 03/29/93 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 61 SHORT TITLE: LOWER ALCOHOL LIMIT TO 0.08 FOR OMVI'S BILL VERSION: SPONSOR(S): REPRESENTATIVE(S) NORDLUND,Ulmer,Brown TITLE: "An Act relating to the offense of operating a motor vehicle, aircraft, or watercraft while intoxicated; and providing for an effective date." JRN-DATE JRN-PG ACTION 01/15/93 73 (H) READ THE FIRST TIME/REFERRAL(S) 01/15/93 74 (H) TRANSPORTATION, JUDICIARY, FINANCE 01/27/93 169 (H) COSPONSOR(S): BROWN 02/25/93 (H) TRA AT 05:00 PM CAPITOL 17 02/25/93 (H) MINUTE(TRA) 03/25/93 (H) TRA AT 05:00 PM CAPITOL 17 03/25/93 (H) MINUTE(TRA) 03/26/93 779 (H) TRA RPT CS(TRA) 1DP 3DNP 2NR 03/26/93 779 (H) DP: MENARD 03/26/93 779 (H) DNP: G.DAVIES, VEZEY, MULDER 03/26/93 780 (H) NR: MACKIE, G.DAVIS 03/26/93 780 (H) -3 FISCAL NOTE (DPS, LAW, ADM) 3/26/93 03/26/93 780 (H) -2 ZERO FISCAL NOTES(CORR, ADM) 3/26/93 03/29/93 (H) JUD AT 01:00 PM CAPITOL 120 ACTION NARRATIVE TAPE 93-44, SIDE A Number 000 The House Judiciary Standing Committee meeting was called to order at 2:07 p.m., on March 29, 1993. A quorum was present. Chairman Porter announced that the committee would take up HB 41 first. HB 41: CIVIL LIABILITY FOR SKIING ACCIDENTS Number 036 GAYLE HORETSKI, COMMITTEE COUNSEL, HOUSE JUDICIARY COMMITTEE, called the members' attention to a draft committee substitute for HB 41 (CSHB 41 (JUD)), dated March 27, 1993. She mentioned that state agencies and others had submitted recommended amendments to HB 41, which had been incorporated into CSHB 41 (JUD). Number 060 CHAIRMAN BRIAN PORTER noted that CSHB 41 (JUD) included changes which had been suggested by, among others, Mr. Richard Harren, an attorney who had testified during the last hearing on HB 41. MS. HORETSKI stated that the first change appeared on the bottom of page 3 of CSHB 41 (JUD). She indicated that the House Labor and Commerce committee substitute for HB 41 had included language which stated that if a person was injured as a result of an "inherent danger" of skiing, in determining percentages of fault, the trier of fact could not treat the inherent danger as part of the ski area operator's "fault." She said that the language had been deleted, at the suggestion of Mr. Harren, because if an injury was the result of an inherent danger, then the injured party could not maintain a suit on that ground. Number 100 MS. HORETSKI commented that ski area officials had agreed with the proposed deletion. She expressed an opinion that the revised language was clearer. She stated that the next change appeared on page 4, lines 10-11. She reminded the committee that the Eaglecrest Ski Area had informed them of a program involving handicapped skiers. She said that language was added to CSHB 41 (JUD) to clarify that if a skier did not have sufficient physical dexterity, but was assisted by someone who did, then that person would be allowed to ski. MS. HORETSKI indicated that the next changes appeared on page 5. She said that the language in question pertained to plans which ski area operators had to submit. New language required that the plans be reviewed and approved by the Commissioner of the Department of Natural Resources (DNR). Existing law provided that the Commissioner of the Department of Public Safety (DPS) reviewed and approved plans. She noted that both the DPS and the DNR had suggested this particular change. There was an exception to this arrangement if a ski area was located on federal land. MS. HORETSKI said that in that situation, the appropriate federal agency would be responsible for reviewing and approving the plan. She mentioned that new language also appeared on page 5, beginning on line 9. That new language embodied Representative Gail Phillips' proposed amendment, which was meant to exclude two small ski areas in Homer and Anchorage from the requirement to meet national ski patrol standards. Number 164 REPRESENTATIVE JIM NORDLUND asked if the language on page 5, lines 16-18, was also new language. MS. HORETSKI replied in the affirmative. REPRESENTATIVE NORDLUND indicated that he intended to offer amendments later in the hearing. Number 172 MS. HORETSKI stated that the new language appearing on page 5, lines 16-18 was suggested by both the DPS and the DNR. It held that the DNR would not be civilly liable for resulting damages. She called the language "standard disclaimer language." She pointed out a change on page 6, line 11 of CSHB 41 (JUD). She said that a reference to a "safety gate" had been changed to read "stop gate." The next change, she said, appeared on page 9, and pertained to warnings on signs and lift tickets. The new language appearing on lines 26-28 was intended to clarify what kind of natural hazards were considered inherent dangers of skiing. Number 210 CHAIRMAN PORTER mentioned that Mr. Harren had indicated that the warning sign language embodied in the House Labor and Commerce committee substitute for HB 41 was not entirely accurate. The new language recognized that there were qualifications to some inherent risks of skiing. If a hazard was not readily visible under ordinary visibility conditions, from a distance of at least 100 feet, he said, then it was not an inherent risk of skiing, and needed to be marked by a sign. Number 226 MS. HORETSKI called the members' attention to the last change incorporated into CSHB 41(JUD), appearing on page 12. The change clarified the definition of "groomed slope or trail," she said, and was added at the request of ski area operators. She commented that the new definition provided that a groomed slope or trail must have been packed or prepared within the previous twelve hours. Number 253 REPRESENTATIVE NORDLUND expressed concern over the definition of "groomed slope or trail." He mentioned that ski areas often had expert trails which equipment could not gain access to, because of their steepness. REPRESENTATIVE JEANNETTE JAMES commented that if equipment could not access a particular trail, then it would not be considered "groomed." REPRESENTATIVE NORDLUND replied that certain runs were still intended to be used by skiers, although they were not able to be groomed by equipment. Number 276 REPRESENTATIVE GAIL PHILLIPS stated that there would be a difference between the definition of a "groomed slope" and a "run." Number 283 REPRESENTATIVE NORDLUND understood that HB 41 was attempting to set out which ski area runs would be marked. MS. HORETSKI stated that Representative Nordlund was correct in his assertion that the point of defining "groomed slope or trail" was to clarify which trails required signs. She reminded committee members of a concern expressed during the last hearing that ski area operators could not conceivably mark every tree and rock within a ski area. Number 300 REPRESENTATIVE NORDLUND acknowledged that a ski area could not be expected to mark every conceivable line that a skier would follow in getting to the bottom of a mountain. That, he said, was part of the inherent risk that skiers took. However, he stated that there were runs, marked on maps, that might be too steep for grooming equipment to access, but on which hazards should still be marked by signs. Number 309 MS. HORETSKI stated that she had described all of the changes incorporated into CSHB 41(JUD). Number 312 CHAIRMAN PORTER asked Mr. Gary Mendivil to comment on the definition of "groomed slope or trail." Number 326 GARY MENDIVIL, from the EAGLECREST SKI AREA, commented that his ski area did include regularly-used runs which could not be accessed by grooming equipment. Number 346 REPRESENTATIVE JAMES mentioned that she was not a skier, and could not visualize how a ski area would mark a run which was too steep for equipment to groom. Number 350 MR. MENDIVIL replied that skiers could still get down the runs, and could put up signs. He asked if a rock which was not visible and not on a groomed trail would be considered an inherent risk of skiing. Number 359 CHAIRMAN PORTER replied that, in his interpretation, it would be considered an inherent risk of skiing. Number 365 MR. MENDIVIL called the members' attention to the language on page 9, lines 19-29 regarding inherent risks of skiing. Number 369 REPRESENTATIVE NORDLUND noted that the only reference in the bill to "groomed slope or trail" of which he was aware was located on page 8, line 30. He suggested that the committee change the term to "designated run" and then define it as one which was marked on a map as a run. Number 379 MR. MENDIVIL commented that, during the last meeting, the approach that Representative Nordlund had just suggested was what individuals were trying to move away from. Number 389 MITCH GRAVO, representing ALYESKA SKI RESORT, thought the committee was trying to distinguish between "groomed slopes" and "open slopes." He said that, as a skier, there were open slopes at Eaglecrest Ski Area and Alyeska Ski Resort which he would not consider going down. He added that there was an expectation that non-readily-visible hazards should be marked on groomed slopes. However, he said, on open slopes, it was unreasonable to require ski areas to mark every hazard. He supported the proposed definition of "groomed slope or trail." Number 420 REPRESENTATIVE JAMES MOVED to ADOPT CSHB 41 (JUD), dated March 27, 1993. There being no objection, IT WAS ADOPTED. Number 426 REPRESENTATIVE NORDLUND stated that in many ways, he felt that HB 41 was a good bill. He noted that the bill went into amazing detail regarding signs. He commented that other areas of the bill, including pertaining to ski area plans of operation, were not as well "fleshed-out." He said that as a member of the skiing public, he wanted the bill to provide more assurances that plans of operation would be sufficient, especially when the bill absolved the state of any liability for inadequate plan review. REPRESENTATIVE NORDLUND wanted to see HB 41 include a provision that the DNR would adopt regulations setting out more detail about what would be required in a plan of operation. He commented that it was somewhat incongruous to set out warning sign requirements in such great detail, and to provide almost no detail about a ski area's plan of operation. He did not see a need to include the language on page 5, lines 16-18, absolving the DNR's Commissioner from liability resulting from acts or omissions. He understood that the state would probably already be immune from liability, due to the sovereign immunity clause. REPRESENTATIVE NORDLUND stated that the language on lines 16-18 took the heart out of public assurances that ski area plans of operation were adequate. Number 478 REPRESENTATIVE JAMES expected that the DNR would adopt regulations, whether or not the legislature told them to do so. Number 491 CHAIRMAN PORTER replied that the legislature had to authorize an agency to promulgate regulations. Number 496 RAGA ELIM, SPECIAL ASSISTANT TO THE DNR'S COMMISSIONER, commented that ski area plans of operation had always been reviewed by DPS officials. He noted that the state was getting into the ski area business, as it owned the land where the Alyeska Ski Resort was being expanded, and also had holdings in the Hatcher Pass and Girdwood areas. Because the state owned the land where ski areas were located, he said, plan review responsibilities were being transferred from the DPS to the DNR. MR. ELIM said that the DNR intended to set out very specific requirements for ski area operators, in addition to those set forth in HB 41, whether through regulation or through lease terms. He said that it was not clear whether or not the DNR would need to adopt regulations. Number 529 REPRESENTATIVE JAMES did not understand how a ski area operator could file a plan, if there was no attendant instructions for doing so. She asked Mr. Elim if he felt that HB 41 should include a provision requiring the DNR to adopt regulations. Number 536 MR. ELIM stated that if HB 41 did not include a requirement that the DNR adopt regulations, the agency would still have the discretion of adopting regulations on its own. Alternatively, he stated that the DNR could also come up with policies and procedures relating to ski area operation plans. He understood that the DPS had not adopted regulations regarding ski area operation plans, but did have a working relationship with the resorts regarding what was expected of them. Number 557 REPRESENTATIVE NORDLUND MOVED AMENDMENT NO. 1, requiring that the DNR adopt regulations pertaining to ski area operation plans. Number 568 GRETCHEN PENCE, SPECIAL ASSISTANT TO THE DPS' COMMISSIONER, addressed the method by which her department reviewed ski area operation plans. She said that the DPS did not currently have any regulations regarding the plans, nor had it in the past. She mentioned that the DPS had developed a working relationship with the ski areas over the past several years. MS. PENCE commented that present statutes required the DPS to review ski area operation plans for some basic safety provisions, regarding avalanches, search and rescue, and missing persons reports. She noted that the DPS had never gone "on site" to examine a ski area. Number 588 REPRESENTATIVE NORDLUND mentioned the Rizer case, in which a child was lost on a ski slope. He had heard Alyeska criticized for having an inadequate plan for dealing with a missing person. He noted that, without regulations, the public was not assured that a ski area would have adequate plans in place. The regulatory process, however, would provide the public with more assurances, he said. REPRESENTATIVE PHILLIPS perceived that adopting amendment no. 1 would result in CSHB 41 (JUD) needing a fiscal note and therefore a House Finance Committee referral. She added that because ski areas were already required to submit plans of operation, and because a working relationship already existed between the state and the ski areas, the committee could elect to not require the DNR to adopt regulations. Number 619 CHAIRMAN PORTER commented that the amendment would not necessarily require a fiscal note. Number 631 REPRESENTATIVE NORDLUND noted that the committee could send a letter of intent along to the House Finance Committee, stating that if the DNR determined that CSHB 41 (JUD) would result in a fiscal impact, then the House Finance Committee could add a fiscal note at that time. He wished to amend his amendment to refer specifically to the DNR's commissioner. Number 639 MR. ELIM asked if the DNR had authority to promulgate regulations under Title 5. REPRESENTATIVE JAMES asked why the DNR, and not the DPS, would be reviewing ski area plans. Number 650 CHAIRMAN PORTER replied that most of the lands involved would be coming under the DNR's purview. Number 658 REPRESENTATIVE CLIFF DAVIDSON questioned whether the committee was unwilling to improve CSHB 41 (JUD), as it would result in the bill receiving an additional committee of referral. Number 663 CHAIRMAN PORTER stated that the committee was currently addressing the question of whether the DNR had the authority, under Title 5, to promulgate regulations. He noted that HB 41 already had a House Finance Committee referral. REPRESENTATIVE PHILLIPS was simply questioning whether the committee needed to add a fiscal note to CSHB 41 (JUD). Number 666 MR. ELIM stated that he had written a new fiscal note to comport with CSHB 41 (JUD). He was uncertain as to whether regulation writing would result in an additional fiscal impact. Number 674 REPRESENTATIVE JAMES asked Mr. Elim to comment on the relative workloads associated with writing regulations and writing policies and procedures. MR. ELIM responded that the regulatory process entailed much more time and effort than the process of writing policies and procedures. Number 687 REPRESENTATIVE NORDLUND considered replacing "department" with "commissioner of natural resources" as a friendly amendment to his amendment. Number 689 REPRESENTATIVE JAMES asked how long the gap between the effective date of CSHB 41 (JUD) and the finalization of regulations would be. Number 694 CHAIRMAN PORTER mentioned that, until regulations were finalized, he assumed that plans would be reviewed according to procedures now in place. Number 705 MR. GRAVO commented that if the committee was concerned about the fiscal impact of the amendment, they could amend the amendment to say that the DNR shall adopt a policy to implement the section. Number 712 CHAIRMAN PORTER replied that Mr. Gravo's suggestion embodied that which was now in place. He added that the legislature either established policy and asked departments to implement it, or established a general policy and asked departments to adopt specific regulations. He would be uncomfortable doing something halfway between those two approaches, he said. Number 726 REPRESENTATIVE NORDLUND commented that HB 41 was very detailed regarding signs, yet much more general with regard to other provisions. The effect of that, he said, was that sign requirements were getting a great deal of public review, while other aspects of ski area operations were not. He expressed his support for requiring the DNR to adopt regulations. Number 736 CHAIRMAN PORTER did not see the adoption of regulations as a bar to implementing the rest of the statute. Number 744 REPRESENTATIVE DAVIDSON stated that it appeared that HB 41 was attempting to solve problems faced by some of the smaller ski areas. Yet, he said, it seemed that the committee was trying to craft a bill which would apply to all ski areas. There being no objection to the adoption of AMENDMENT NO.1, IT WAS ADOPTED. Number 756 REPRESENTATIVE NORDLUND asked why the immunity language on page 5, lines 6-18 had been added to CSHB 41 (JUD). Number 768 MS. HORETSKI replied that the DPS and the DNR had suggested the addition. Number 770 MS. PENCE stated that the Department of Administration's Division of Insurance had recommended the addition to the DPS. Number 786 REPRESENTATIVE NORDLUND stated that because AMENDMENT NO.1, requiring the DNR to adopt regulations, had been adopted, he would not offer an amendment pertaining to the immunity language. TAPE 93-44, SIDE B Number 000 REPRESENTATIVE DAVIDSON called the members' attention to page 5, line 1. He asked if a ski area was obliged to follow a plan, once prepared and implemented. He said that if that was not the case, then he would OFFER AMENDMENT NO. 2 adding language to that effect. Number 029 CHAIRMAN PORTER commented that, in his opinion, following the plan was inherent in the language of CSHB 41 (JUD). REPRESENTATIVE DAVIDSON WITHDREW AMENDMENT NO. 2. Number 067 REPRESENTATIVE DAVIDSON MOVED AMENDMENT NO. 3, inserting a new provision requiring an operator or its predecessor who had a plan in effect on January 1, 1993, to implement that plan as a minimum standard for skier safety. He said that the intent of his amendment was to prohibit ski areas from implementing lesser standards than those in place on January 1, 1993. Number 081 REPRESENTATIVE PHILLIPS OBJECTED for the purpose of discussing the amendment. CHAIRMAN PORTER asked if it would be appropriate to say that a plan in place on January 1, 1993 would operate as a minimum standard for skier safety until the adoption of regulations by the DNR. Number 092 REPRESENTATIVE PHILLIPS said that the committee could be creating a problem, in that, for 1993, plans would already be in effect. Number 101 REPRESENTATIVE DAVIDSON stated that it was his intent that ski areas not adopt plans which were less stringent than those already in place for 1993. CHAIRMAN PORTER mentioned that the January 1, 1993 date concerned him. He noted that ski area operation plans were probably amended at times, with those amendments resulting in even safer skiing conditions. He asked Representative Davidson if he would object to changing the January 1, 1993 date to the date HB 41 passed. Number 123 REPRESENTATIVE PHILLIPS commented that by the time HB 41 passed the legislature and was signed by the governor, ski season would be over. She OBJECTED to the motion on the basis that the amendment was a moot point. Number 132 REPRESENTATIVE DAVIDSON wanted to ensure that ski areas did not adopt lower safety standards than those which were currently in place. He understood the Chairman's concern regarding the January 1, 1993 date, but said that, in his opinion, the Chairman's suggestion for rectifying the problem would not adequately address the situation. Number 147 CHAIRMAN PORTER noted that there was adequate time to get regulations in place before the next ski season began. He understood what Representative Davidson was trying to accomplish with his amendment, but did not like the amendment's presumption that ski area operators were "laying in wait" to reduce safety standards. Number 171 REPRESENTATIVE DAVIDSON expressed his opinion that when safety costs money, safety generally did not happen. He reminded the committee members that they had heard powerful testimony expressing concerns with HB 41. He wanted to ensure that the committee had tried to address some of the concerns and fears that people had testified about. Number 184 REPRESENTATIVE JAMES noted that some of the testifiers had assumed that adoption of HB 41 would result in less safe skiing conditions than now existed. She said that testimony she had heard seemed to indicate that the perceived problem was ski areas not adhering to plans in place, not that the plans themselves were inadequate. She expressed an opinion that HB 41 would ensure that plans would be at least as stringent as they were today. With the adoption of regulations, she added, plans would likely be even more stringent than they were now. Number 205 CHAIRMAN PORTER commented that the committee had heard testimony expressing an opinion that a particular ski area operator had not correctly implemented a plan, or did not have an appropriate plan. That opinion, he noted, would be tested in court. REPRESENTATIVE DAVIDSON stated that some laws, not excluding HB 41, made it more difficult for aggrieved parties to file lawsuits. A roll call vote on amendment no. 3 was taken. Representatives Nordlund and Davidson voted "YEA." Representatives Kott, Phillips, James, and Porter voted "NAY." And so, AMENDMENT NO. 3 WAS NOT ADOPTED. Number 243 REPRESENTATIVE DAVIDSON MOVED AMENDMENT NO. 4, deleting the word "groomed" on page 8, line 30. REPRESENTATIVE PHILLIPS OBJECTED. Number 250 REPRESENTATIVE DAVIDSON understood that many ski trails were not groomed. His amendment sought to expand the safety responsibilities of ski area operators, he said. He cited concerns of parents whose children went skiing. Number 265 CHAIRMAN PORTER stated that the committee had discussed this issue prior to Representative Davidson's arrival at the meeting. He said that the idea behind requiring signs only on groomed trails was so that an operator was not made to post a sign on every tree and rock within the ski area. Number 282 REPRESENTATIVE PHILLIPS noted that many of the unsigned trails were in areas where children would not be skiing, unless they were expert skiers. Number 288 CHAIRMAN PORTER commented that his children had skied all over the Alyeska ski area. He added that they knew, and he knew, that skiing was inherently risky. Number 303 REPRESENTATIVE NORDLUND said that, as he read Representative Davidson's amendment, it could require a ski area operator to mark every tree on a ski slope. For that reason, he said, he intended to vote against the amendment. Number 310 REPRESENTATIVE DAVIDSON WITHDREW AMENDMENT NO. 4. REPRESENTATIVE JAMES made a MOTION to MOVE CSHB 41 (JUD), dated 3/27/93, as amended, with individual recommendations, and a zero fiscal note. There being no objection, IT WAS SO ORDERED. Number 323 CHAIRMAN PORTER announced that the next item of business before the committee was HB 147. HB 147: EMPLOYER'S LIABILITY FOR REFERENCE INFO MS. HORETSKI called the members' attention to a new draft committee substitute (CSHB 147 (JUD)), dated March 12, 1993. She noted that a companion bill, SB 122, was currently on the Senate floor. She stated that the only change between CSHB 147 (JUD), dated March 12, 1993 and an earlier House Judiciary committee substitute appeared on the bottom of page 1. MS. HORETSKI stated that the new committee substitute had two paragraphs at the bottom of page 1, and the old committee substitute had three paragraphs. She explained that former paragraphs (1) and (2) had been combined into present paragraph (1) which required that, in order for an employer to lose the presumption of good faith, he or she must have recklessly, knowingly, or with a malicious purpose, disclosed false or deliberately misleading information. If disclosed information was accurate, she noted, these provisions would generally not apply. Number 375 REPRESENTATIVE PHILLIPS made a MOTION to ADOPT CSHB 147 (JUD), dated March 12, 1993. There being no objection, IT WAS SO ORDERED. Number 379 REPRESENTATIVE JAMES made a MOTION to MOVE CSHB 147 (JUD), dated March 12, 1993, out of committee with individual recommendations. There being no objection, IT WAS SO ORDERED. CHAIRMAN PORTER announced that the committee would now take up HJR 3. HJR 3: LIMITING TERMS OF LEGISLATORS MS. HORETSKI called the members' attention to a draft committee substitute (CSHJR 3 (JUD)), dated March 24, 1993. She reminded the committee that they had suggested referring to calendar years, instead of terms, to avoid ambiguity. She said that that change had been incorporated into CSHJR 3 (JUD). MS. HORETSKI noted another change included in CSHJR 3 (JUD), on page 1, line 12. The new version of the resolution stated that "no person may serve consecutively more than fourteen full calendar years". An earlier version of the resolution provided that no person could serve consecutively "more than eleven full or partial calendar years", she said. Number 426 CHAIRMAN PORTER commented that CSHJR 3 (JUD). Number 431 REPRESENTATIVE DAVIDSON said that it might be a compromise, but he still found it to be bad public policy. He predicted that the resolution would spawn litigation, and asked why the legislature desired to limit the public's choice. He stated that the resolution went overboard in attempting to fix a problem which did not exist. He noted that this year, there were 18 new House members. He said that there would be a negative effect on the legislature if there was an even higher concentration of new legislators after the next election. He recommended that the committee not move the resolution out. Number 458 REPRESENTATIVE JAMES commented that term limits already existed, at the voting booth. However, she said that most of her constituents felt that term limits were needed. She expressed an opinion that the legislature would benefit from a high concentration of new members every two years. Number 472 REPRESENTATIVE DAVIDSON replied that he had not intended to slight the freshmen legislators. He noted that thoroughly learning the legislative process took a great deal of time. He added that institutional memory helped new legislators to learn. Number 484 REPRESENTATIVE PHILLIPS noted that a constitutional revision task force might be formed to work during the interim. She said that it might be appropriate to refer HJR 3 to that task force for study. Number 500 REPRESENTATIVE NORDLUND made a MOTION to ADOPT CSHJR 3 (JUD), dated March 24, 1993. There being no objection, IT WAS ADOPTED. Number 504 REPRESENTATIVE NORDLUND made a MOTION to PASS CSHJR 3 (JUD), dated March 24, 1993, out of committee with individual recommendations and attached fiscal note. Number 510 REPRESENTATIVE DAVIDSON asked if this meant that there would never be the opportunity to hold a bill in the House Judiciary Committee for further study. Number 519 CHAIRMAN PORTER replied in the negative. He noted that there had been a great deal of discussion over the years, both within the legislature and outside of it, on the issue of term limits. Number 522 REPRESENTATIVE JAMES said that, realistically, if the committee was having such a difficult time moving the resolution out, how could the resolution win a 2/3 vote on the House floor. Number 528 REPRESENTATIVE NORDLUND commented that the best place to vote on the resolution was on the House floor. There being no objection to moving CSHJR 3 (JUD) out of committee, IT WAS SO ORDERED. CHAIRMAN PORTER announced that the committee would take up HB 61 next. HB 61: LOWER ALCOHOL LIMIT TO 0.08 FOR OMVI'S Number 540 REPRESENTATIVE JIM NORDLUND, PRIME SPONSOR of HB 61, told the committee that his bill would lower the blood alcohol content (BAC) level at which a person would be considered to be legally drunk while driving, from .10 to .08. He called the members' attention to a chart included in the bill packets which showed the practical effect of that change, in terms of quantity of drinks, body size, and sex of the subject. (A copy of the chart may be found in the House Judiciary Committee Room, Capitol Room 120, and after the adjournment of the second session of the 18th Alaska State Legislature, in the Legislative Reference Library.) REPRESENTATIVE NORDLUND commented that studies had shown that driving ability was significantly impaired when a person had a BAC of approximately .05. That impairment included reduced visual acuity and slower reaction time, he said. He noted that for commercial motor vehicle operators, a BAC of higher than .04 was considered legally drunk under present state law. He said that HB 61 would not solve the problem of drunk driving, but could help alleviate the problem to some extent. REPRESENTATIVE NORDLUND stated that the committee would probably hear testimony that most drunk driving accidents involved persons with a BAC of well above .10. He agreed with that. However, he said that HB 61 would make some difference in making the state's highways safer. He noted that his bill would encourage people to act responsibly. Number 586 REPRESENTATIVE JAMES asked about the effect of the recency of drinking on the results of a breath test. Number 592 CHAIRMAN PORTER replied that a commonly-used defense at DWI (driving while intoxicated) trials was that a person had had a lot to drink just before getting in the car, but believed that he or she would not feel the effects of the alcohol until after he or she had arrived at home. Number 615 REPRESENTATIVE NORDLUND was encouraged to introduce HB 61 by the Alaska Peace Officers Association in Anchorage. He stated that when people were found to have a BAC of .10, it was difficult to make those prosecutions "stick." He said that if there was a lesser penalty, people registering a BAC of .10 could plead down to that lesser penalty and be successfully prosecuted for a DWI offense. He said that under HB 61's provisions, people found to have a BAC of .08 would be penalized by a fine of at least $250. He said that he had crafted the bill in such a manner so as to not impact the Department of Corrections (DOC). REPRESENTATIVE NORDLUND stated that a DWI on one's record, combined with a fine and probably increased insurance rates would create a deterrent to driving while under the influence of alcohol. Number 641 MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW (DOL), stated that the DOL supported the concept of a .08 DWI offense. She noted that the DOL had supported similar legislation the year before. She said that a growing number of states, especially Western states, were using .08 as the cut-off for DWI offenses. She commented that her department was concerned about the sentencing provisions contained in section 3 of the bill, however. She expressed support for deleting that section. The reason for that, she said, was that by creating a separate offense, although still a class A misdemeanor, a .08 DWI would be considered a "lesser offense" to a .10 DWI prosecution. MS. KNUTH said that in that situation, defendants registering a BAC of .10 might seek to plead down to the lesser .08 offense, because the lesser offense did not require mandatory jail time. She mentioned federal highway safety incentive funds for which the state could apply. In order to receive those funds, she said, the state would have to impose mandatory jail time, at least 48 hours, for repeat DWI offenders. She mentioned that there was currently no provision for that jail time in HB 61, meaning that passage of HB 61 would not comply with federal funding requirements. MS. KNUTH stated that Alaska's appellate courts had said that a .08 DWI offense was not "substantially similar" to a .10 DWI offense. Therefore, she said that Alaska could not count any .08 DWI conviction from another jurisdiction as a prior offense for sentencing purposes. She stated that that circumstance would continue unless section 3 were deleted from HB 61. TAPE 93-45, SIDE A Number 000 MS. KNUTH expressed her opinion that the elements of HB 136, Drunk Driving and Breath Test Offenses, would dovetail well with HB 61. Number 020 REPRESENTATIVE NORDLUND was interested in amending HB 61 so as to make the state eligible for federal funding. He asked Ms. Knuth if there were many acquittals for persons charged with DWI offenses, whose BAC registered on or near the .10 margin. Number 034 MS. KNUTH did not know about acquittals, but knew that there were many cases which were simply not prosecuted because the BAC was on or near the margin. She commented that under current law, a person could be charged with a DWI offense if his or her BAC registered under .10. However, she said that it was difficult to successfully prosecute such cases. If the state had a .08 DWI offense, she added, the state expected that persons who had a BAC at or near the .10 margin would plead down to the lesser .08 DWI offense. The state did not expect to make more arrests, she said, just to end up with more convictions. REPRESENTATIVE NORDLUND stated that with HB 61, persons charged with a .10 DWI offense could plead down to the lesser .08 charge, whereas under current law, persons with a BAC at or near .10 were often not prosecuted. Number 081 MS. KNUTH was concerned about whether or not a .08 conviction would count as a DWI offense, in terms of the state's repeat offender sentencing laws. She feared that HB 61 would lessen the deterrent effect of the state's current DWI laws. Number 104 CHAIRMAN PORTER asked what would happen in the event that a person was convicted of a .08 DWI offense, and later was convicted of a DWI offense, with a BAC of .15. "Would that person be treated as a second offender?" he asked. Number 112 MS. KNUTH believed that person would not be treated as a second offender. Number 122 REPRESENTATIVE NORDLUND recognized that as a problem. He stated that the reason for making a .08 DWI a separate offense was to not add to the already overcrowded jails in the state. He noted that if HB 61 was amended as the DOL had suggested, it would require a DOC fiscal note. He mentioned Representative Eldon Mulder's HB 136, Drunk Driving and Breath Test Offenses, and said that if that bill passed, it would be a good idea to make the change suggested by Ms. Knuth. Number 156 CHAIRMAN PORTER noted that the committee could ask the DOC to draft a fiscal note based on HB 136 being law at the time that HB 61 was enacted. Number 179 CHAIRMAN PORTER stated that HB 61 might inspire some trials, as defendants sought to get a charge reduced from a .10 offense to a .08 offense. He said that the state's track record for convictions, other than those for defendants whose BAC was at or near .10, was very good. He expressed fear that HB 61 might have a negative effect on the state's track record for DWI convictions. Number 203 JUANITA HENSLEY, CHIEF OF DRIVER SERVICES, DIVISION OF MOTOR VEHICLES (DMV), DPS, said that her department supported a .08 DWI offense. However, she had concerns about section 3 of HB 61. She recommended that the committee delete that particular section. She also expressed concerns about section 5 of the House Transportation Committee's substitute for the bill. She stated that federal law allowed states to keep .10 laws for three years after states became eligible for certain federal grants. Then, she added, states had to change to a .08 DWI law in order to be eligible for those grants. Number 260 MS. HENSLEY commented that section 5 of CS HB 61 (TRA) was therefore a moot point. She mentioned that states that had adopted .08 laws had shown a 15.4% reduction in traffic fatalities. The State of Maine had shown a 37% decrease in alcohol-related traffic fatalities, she noted. But, she said, that state heavily enforced the new .08 law. Number 276 CHAIRMAN PORTER asked Ms. Knuth if sections 3 and 5 were to be removed from the bill, would HB 61 then simply lower the BAC level at which intoxication was presumed from .10 to .08. Number 284 MS. KNUTH replied in the affirmative. Number 296 CHAIRMAN PORTER noted that prosecutors would still have the ability to charge a DWI offense if the driver's BAC was between .04 and .07, with egregious conduct indicative of intoxication. Number 303 MS. KNUTH stated that if HB 61 was amended as proposed, Alaska, for the first time, could treat people with .08 DWI convictions from other jurisdictions as repeat DWI offenders. Number 314 REPRESENTATIVE NORDLUND made a MOTION to DELETE sections 3 and 5 from CSHB 61 (TRA). There being no objection, IT WAS SO ORDERED. Number 339 REPRESENTATIVE NORDLUND commented that the Transportation Committee had also changed the effective date of HB 61, from 1994 to 1995, in order to take into account the provisions of section 5. He suggested changing the effective date back to January 1, 1994, as it was in the original bill. He made a MOTION to AMEND the bill in that manner. Number 354 REPRESENTATIVE PETE KOTT OBJECTED, for the purposes of discussion. He asked what the intent behind a January 1, 1994 effective date was. Number 361 MS. HENSLEY responded that a January 1, 1994 effective date would give the DMV more time to change its forms and inform law enforcement officers of the change in law. She said that the DMV could gear up to implement the new law in less time, if the committee desired to change the effective date. Number 377 REPRESENTATIVE KOTT stated that a January 1 date would "catch" drivers out on New Year's Eve. He would rather see an earlier effective date or a January 2 effective date in the bill. MS. KNUTH commented that September was the usual effective date for new crime bills. Number 391 REPRESENTATIVE NORDLUND WITHDREW his MOTION. He made a new MOTION to CHANGE the effective date to September 1, 1993. Number 403 CHAIRMAN PORTER supported the proposed new effective date. Number 412 REPRESENTATIVE KOTT observed that the September 1 effective date would result in approximately the same time frame as allowing the bill to go into effect 90 days after being signed by the governor. Number 427 MS. HENSLEY stated that the September 1, 1993 effective date would give the DMV sufficient time to prepare to implement the law. There being no objection to the amendment, IT WAS ADOPTED. Number 445 REPRESENTATIVE NORDLUND requested that the committee write a letter to the DOC, asking that its fiscal note indicate the effect of HB 61 in the event that HB 136 was enacted. Number 456 MS. HORETSKI indicated that the committee could request two different fiscal notes from the DOC, one of which could reflect the fiscal impact of HB 61, given enactment of HB 136. Number 464 CHAIRMAN PORTER proposed asking the DOC to prepare two fiscal scenarios for HB 61, based on enactment and non- enactment of HB 136. Number 482 REPRESENTATIVE JAMES made a MOTION to MOVE out CSHB 61 (JUD). There being no objection, IT WAS SO ORDERED. ADJOURNMENT CHAIRMAN PORTER adjourned the meeting at 3:55 p.m.