02/09/1998 01:08 PM House JUD
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 9, 1998
1:08 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 203
"An Act relating to actions for unlawful trade practices."
- HEARD AND HELD
HOUSE BILL NO. 267
"An Act relating to domestic violence and sexual assault; and
providing for an effective date."
- MOVED CSHB 267(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 87
"An Act relating to fines and bail forfeiture amounts for certain
offenses committed within highway work zones."
- SCHEDULED BUT NOT HEARD
* SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 293
"An Act relating to collection of settlement information in civil
litigation; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 203
SHORT TITLE: ACTIONS FOR UNLAWFUL TRADE PRACTICES
SPONSOR(S): REPRESENTATIVES(S) DYSON, Croft
Jrn-Date Jrn-Page Action
03/18/97 738 (H) READ THE FIRST TIME - REFERRAL(S)
03/18/97 738 (H) L&C, JUDICIARY
04/23/97 (H) L&C AT 3:15 PM CAPITOL 17
04/23/97 (H) MINUTE(L&C)
05/05/97 (H) L&C AT 3:15 PM CAPITOL 17
05/05/97 (H) MINUTE(L&C)
05/06/97 1547 (H) L&C RPT CS(L&C) 3DP 2NR
05/06/97 1548 (H) DP: COWDERY, SANDERS, HUDSON
05/06/97 1548 (H) NR: ROKEBERG, BRICE
05/06/97 1548 (H) ZERO FISCAL NOTE (LAW)
05/06/97 1548 (H) REFERRED TO JUDICIARY
01/30/98 (H) JUD AT 1:00 PM CAPITOL 120
01/30/98 (H) MINUTE(JUD)
02/09/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 267
SHORT TITLE: DOMESTIC VIOL. & SEXUAL ASSAULT DISCLOSURE
SPONSOR(S): REPRESENTATIVES(S) KELLY, Dyson
Jrn-Date Jrn-Page Action
04/30/97 1409 (H) READ THE FIRST TIME - REFERRAL(S)
04/30/97 1409 (H) JUDICIARY
02/02/98 (H) JUD AT 1:00 PM CAPITOL 120
02/02/98 (H) MINUTE(JUD)
02/09/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 428
Juneau, Alaska 99801
Telephone: (907) 465-2199
POSITION STATEMENT: Sponsor of HB 203.
JULIA COSTER, Assistant Attorney General
Commercial Section
Civil Division (Anchorage)
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
Telephone: (907) 269-5100
POSITION STATEMENT: Provided department's position and answered
questions on HB 203.
STEPHEN CONN, Executive Director
Alaska Public Interest Research Group
P.O. Box 101093
Anchorage, Alaska 99510
Telephone: (907) 278-3681
POSITION STATEMENT: Testified in support of HB 203.
RON HAMMETT
American Association of Retired Persons
3512 Stanford
Anchorage, Alaska 99508
Telephone: (907) 279-2330
POSITION STATEMENT: Testified in support of CSHB 203(L&C).
PEGGY MULLIGAN
Capital City Task Force
of American Association of Retired Persons
P.O. Box 240335
Douglas, Alaska 99824-0335
Telephone: (907) 364-3114
POSITION STATEMENT: Testified in support of HB 203.
MARIE DARLIN, Legislative Chair
Alaska Federation
National Association of Federal Employees
415 Willoughby, Number 506
Juneau, Alaska 99801
Telephone: (907) 586-3637
POSITION STATEMENT: Testified in support of HB 203.
VERA A. GAZAWAY
Older Persons Action Group
415 Willoughby Avenue, Number 414
Juneau, Alaska 99801
Telephone: (907) 586-1777
POSITION STATEMENT: Testified in support of HB 203.
KEVIN JARDELL, Legislative Administrative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-4990
POSITION STATEMENT: Provided information on HB 203.
JAYNE ANDREEN, Executive Director
Council on Domestic Violence and Sexual Assault
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
Telephone: (907) 465-4356
POSITION STATEMENT: Testified on HB 267.
BRUCE CAMPBELL, Legislative Assistant
to Representative Pete Kelly
Alaska State Legislature
Capitol Building, Room 411
Juneau, Alaska 99801
Telephone: (907) 465-6598
POSITION STATEMENT: Testified on behalf of sponsor of HB 267.
LAUREE HUGONIN, Director
Alaska Network on Domestic Violence and Sexual Assault
130 Seward, Room 501
Juneau, Alaska 99801
Telephone: (907) 586-3650
POSITION STATEMENT: Answered questions on HB 267.
REPRESENTATIVE PETE KELLY
Alaska State Legislature
Capitol Building, Room 411
Juneau, Alaska 99801
Telephone: (907) 465-2327
POSITION STATEMENT: Sponsor of HB 267.
ACTION NARRATIVE
TAPE 98-13, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:08 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter and Croft.
Representatives Berkowitz, James and Rokeberg arrived at 1:10 p.m.,
1:11 p.m. and 1:25 p.m., respectively. Chairman Green noted that
the meeting was being teleconferenced.
HB 203 - ACTIONS FOR UNLAWFUL TRADE PRACTICES
Number 0061
CHAIRMAN GREEN announced the first item of business would be HB
203, "An Act relating to actions for unlawful trade practices."
REPRESENTATIVE FRED DYSON, sponsor, noted that HB 203 had been
introduced the previous year; he confirmed that members had copies
of CSHB 203(L&C). He then provided highlights from the sponsor
statement. He said at least for the last hundred years, Alaska has
had more than its fair share of bunco artists, "who have come here
to rip off our intelligent and sometimes naive citizens of their
wealth." The state, in its wisdom, has evolved a fairly elaborate
process for dealing with consumer fraud. Representative Dyson
informed members that in the last eight or nine years, however, the
part of the Office of the Attorney General that had dealt with
consumer fraud had largely been defunded, with staff reduced to one
and a half attorney positions. He asked whether Daveed Schwartz
from that office was on-line.
Number 0211
JULIA COSTER, Assistant Attorney General, Commercial Section, Civil
Division (Anchorage), Department of Law, answered via
teleconference that Daveed Schwartz was not available but that she
also handles consumer protection.
REPRESENTATIVE DYSON informed members that HB 203 empowers citizens
to perform many functions previously reserved for the Office of the
Attorney General. They are trying to eliminate two problems. In
the past, only the Office of the Attorney General could get
injunctive relief to stop a fraudulent practice. This bill gives
the citizen a chance to go after bunco artists and get the court to
stop them. First, the citizen must write to whoever is allegedly
doing the fraudulent behavior, requesting that the person cease and
desist. Following that, if the person willfully continues to do
the activity, the citizen can go to court and appeal for an
injunction to stop the activity.
Number 0322
REPRESENTATIVE DYSON explained that without HB 203, citizens cannot
seek injunctive relief to stop the activity until after they have
been harmed. Just recognizing the scheme without falling for it
would not be sufficient. Second, if the fraud is against a
neighbor or an incapacitated person, a citizen couldn't go to court
to seek injunctive relief on that other person's behalf, without
this legislation.
REPRESENTATIVE DYSON said he sees this as an opportunity to at
least go after the harm before it spreads. His interest in this
began after his mother died following a brief illness; he had found
"really screwy health insurance and burial policies" in her
dresser, and he'd realized that in his mother's anxiety, she was
trying to protect the family by buying those. Representative Dyson
informed members they would hear from senior citizens who feel that
as a segment of our society they are disproportionately targeted.
He noted that much of the problem in Alaska, as he understands it,
is from telemarketing organizations from elsewhere.
Number 0467
REPRESENTATIVE DYSON explained that it has been difficult for the
victim of a small fraud to get relief. For a claim too large for
small claims court, there was no way to recover attorney fees if
the claimant needed help. This bill allows a claimant who prevails
against a fraudulent enterprise to recover the cost of going after
the perpetrator. It also allows for treble damages if the claimant
prevails, as part of the penalty. Representative Dyson expressed
hope that it will not facilitate frivolous lawsuits; a person who
files a lawsuit and loses will pay not only his or her own costs,
but also court costs and attorney fees.
Number 0577
REPRESENTATIVE DYSON noted that in the House Labor and Commerce
Standing Committee, Representative Rokeberg had expressed concern
about people using this as a means of going after a business
competitor through injunctions or other actions. Representative
Dyson indicated he believes that CSHB 203(L&C) minimizes the
possibility of that happening.
REPRESENTATIVE DYSON said it had been pointed out to him that this
legislation follows a practice learned during the civil rights era,
when most people realized that state attorney general's offices
didn't have the resources, or perhaps the inclination, to file the
necessary civil rights actions to end discrimination in the United
States. He stated, "So, they allowed for, if you were successful
in an action, that you could recover your attorneys fees and,
therefore, the cost of bringing the action." Representative Dyson
advised members that he would defer to Ms. Coster to answer
technical questions.
Number 0681
REPRESENTATIVE CON BUNDE informed members that he had heard
recently from the American Association of Retired Persons (AARP) a
concern about telemarketing and telephone soliciting fraud. One of
their suggestions was requiring a company that would be involved in
such activity in Alaska to post a bond to address fraudulent
claims. Representative Bunde asked whether that would fall under
the purview of this bill and whether Representative Dyson had any
interest in looking at that.
REPRESENTATIVE DYSON replied that he is certainly interested in
anything that will help, but it had not been specifically
addressed. He suggested the bill may be broad enough to bring that
in, and that he would want to think about it.
REPRESENTATIVE BUNDE said he would talk with the sponsor later.
Number 0763
CHAIRMAN GREEN stated his understanding that for small claims
court, the upper limit is $5,000 and it doesn't require an
attorney. He asked how this makes it better for someone who had
been defrauded.
REPRESENTATIVE DYSON said he would defer to others on this.
However, the problem has been with "the small guy going after
Goliath," that large firms with lots of attorneys on retainer are
prepared to fight it, get delays, and keep it out of court for
extended periods of time, draining the consumer's resources and
time until after the fraud has run its course or has ceased to be
a valuable marketing tool.
Number 0847
CHAIRMAN GREEN suggested that a transaction for a $2,000 car, for
example, could quickly go beyond $5,000 just in time, motions, and
that sort of thing.
REPRESENTATIVE DYSON asked Ms. Coster to comment.
Number 0871
MS. COSTER explained that Section 3 addresses an area not currently
addressed: private injunctive relief. Currently, there is a
private right of action to recover damages; for example, a person
who has been defrauded and has paid $200 could go to small claims
court and get that money refunded under AS 45.50.531. However, a
private person cannot go to court, whether small claims court or
otherwise, to enforce a law by getting a court order prohibiting
the business or person from engaging in the fraudulent conduct.
Currently, only the Office of the Attorney General has that power.
Under Section 3, however, a citizen could obtain a court order; if
the person then violated that injunction, there would be an
opportunity for follow-up enforcement.
Number 0984
REPRESENTATIVE JEANNETTE JAMES stated her understanding that the
injunctive relief wouldn't come from small claims court but from
the regular court. She said it seems that small claims courts are
for cut-and-dried matters, that if there is any dispute, it cannot
be settled in small claims court. She asked whether that is
correct.
MS. COSTER replied that there is a jurisdictional limit for small
claims of a certain amount of money. She said she'd have to check
to see whether there are other limitations. She agreed that small
claims court is generally used for fairly simple, straightforward
cases.
Number 1026
CHAIRMAN GREEN said he'd just been advised by their attorney that
it requires that both parties agree to the action in small claims
court. He posed a hypothetical situation and asked how he would
get a hold of someone from another state.
MS. COSTER inquired whether he was asking as a consumer or a
business person.
CHAIRMAN GREEN said both, then noted that as a business person, he
would probably have the address in order to place an order. He
asked whether as a consumer, he would have to go back to the person
that sold something to him.
MS. COSTER replied that he would probably have to find out who the
party is who actually committed the fraud. If the person who sold
it didn't know there was a problem, that might not be the party
that committed the fraud.
Number 1137
REPRESENTATIVE ERIC CROFT commented that it brings out a lot of the
difficulties with the current system and applying it to small
claims court, in addition to finding the person and bringing the
person in from out of state. He pointed out that fraud itself is
a complicated concept, saying the law requires it to be pled with
particularity. He stated, "It's very different from your standard
small claims: 'You didn't pay me my rent.' 'You didn't pay me the
third installment on my couch.' Or, 'You did a fender-bender and
never paid up.'" Representative Croft noted that it is an area of
statutory law that can be complicated factually and in discovery.
"And even if it didn't have those complications, you would want to,
in that case, not just get your money - get your $200 without
charging you $3,000 in attorneys fees - but also tell them to
stop," he concluded.
Number 1199
STEPHEN CONN, Executive Director, Alaska Public Interest Research
Group (AKPIRG), testified via teleconference from Anchorage, saying
they have 3,500 to 4,000 members at any given time. He explained
that the main reason people join AKPIRG is because of the absence
of state enforcement of the consumer protection laws.
MR. CONN said this is a great bill. It is bipartisan, it is very
practical, and it speaks to the needs of Alaskans at this moment in
time. He agreed that the feature of injunctive relief is a fine
attribute. He reminded people that the previous year, Dr. Helen
Beirne had testified about her experience in support of this
legislation. He concluded by saying he hopes and prays for the day
when the state of Alaska returns to the business of enforcing its
consumer protection laws. But in the meantime, he certainly
applauds this bipartisan effort to empower private citizens to
fight for consumer protection.
Number 1311
RON HAMMETT, American Association of Retired Persons (AARP),
testified via teleconference from Anchorage, specifying that
currently he is the director of the new information center and that
formerly he was with the state legislative committee. He noted
that the AARP has more than 40,000 members in Alaska. He said he
wouldn't get into the intricacies of the bill; however, he had
discussed this with the chairman of the state legislative committee
of AARP, who had told him they are officially endorsing the bill.
Mr. Hammett specified that this is an endorsement of CSHB 203(L&C).
Number 1363
PEGGY MULLIGAN, Capital City Task Force (CCTF) of American
Association of Retired Persons (AARP), came forward to testify.
She said they had testified last year when this bill was before the
House Labor and Commerce Standing Committee, and she had listened
with great interest to Representative Dyson about the committee
substitute today. She said the CCTF fully agrees with and supports
this bill. She then provided the committee with a position paper
from the Alaska AARP in support of legislation relating to
telemarketing fraud.
MS. MULLIGAN explained that they had held a consumer fraud forum
last fall, which she believes was quite successful. She expressed
the belief that through that, they got a lot of information to the
public to help them understand consumer fraud and to deal with
telemarketers who are trying to defraud them. She stated, "We went
to a state conference in November, and we reported to them on ...
the success of our fraud forum and gave out quite a bit of the
information that we had, because other cities are interested in
this: Anchorage and Ketchikan and Sitka. So, we certainly
appreciate seeing this bill come before you, and we're very hopeful
that it'll become law. We like the idea that it levels the playing
field for Alaskans and, you might say, brings up to the standard of
most of the other states in protecting their citizens."
Number 1475
MARIE DARLIN, Legislative Chair, Alaska Federation, National
Association of Federal Employees (NARFE), came forward to testify.
She provided a copy of what she said was handed to the legislature
the previous year citing their concerns about consumer fraud. At
their convention in May 1997, they had passed a resolution
regarding the need for more action relating to consumer fraud; she
noted that long-term care was included in that, as well. She
pointed out that attached to the document she'd provided was an
outline of the consumer fraud forum held in Juneau on October 25,
1997. Also provided was a letter from Muriel Baker regarding a
suspicious telephone call she had received. Ms. Darlin pointed out
that such activities are not always targeted at seniors but at
those who are retired or who have money somewhere to be had. She
specified that her organization backs this bill as one more step
towards what they need to fight consumer fraud in Alaska.
Number 1573
VERA A. GAZAWAY, Older Persons Action Group (OPAG), came forward to
testify, saying she has studied and been a careful watcher of HB
203. She emphasized that they are working both for the younger and
the older who have little or no protection from frauds and cheats
who will pick up the telephone and call them. This bill provides
a way for citizens who have been defrauded to act on their own
behalf and at least find some help. She described the bill as an
opening door, saying she sees no way that it is anything other than
beneficial. She concluded by indicating OPAG is a statewide
organization.
Number 1659
REPRESENTATIVE BRIAN PORTER asked Ms. Gazaway whether she is
familiar with the program proposal from OPAG in Anchorage.
MS. GAZAWAY said yes, specifying that she remains on the board at
OPAG. "And there is no conflict between the two," she said.
REPRESENTATIVE PORTER asked whether she sees some redundancy.
MS. GAZAWAY replied, "No, not necessarily, because the approach
that Older Persons Action Group is taking now is a different
approach. ... Surely they're working for the same kind of goal, but
there are a lot of different facets. And what Older Persons Action
Group's requesting is sort of an attempt to get this going and to
meet with those people and give them a telephone to call through
...." She indicated that although they could very well be
companion pieces, they are not because OPAG's proposal is for a
grant.
REPRESENTATIVE CROFT said, "On the OPAG proposal, they weren't
talking about hiring any attorneys or prosecuting these things."
MS. GAZAWAY said no.
REPRESENTATIVE CROFT asked what they were talking about doing.
Number 1720
MS. GAZAWAY replied that they were talking about a couple of
things, including having a telephone that someone would answer.
She explained, "There is nothing more devastating than to need help
and want help desperately, have a telephone, but there's no one at
the other end of the line. So, that is one big piece." She said
the other big piece is that volunteers would put this plan into
effect. She indicated that compassion is one of the things most
needed when someone has just been ripped off, losing their home or
assets.
Number 1754
REPRESENTATIVE PORTER said he believed one other adjunct to the
program is that they are proposing to take it a step further and
actually do mediation between the parties involved.
MS. GAZAWAY agreed, saying that in addition to one position, people
are serving as volunteers. She said they work together and would
support both efforts.
Number 1790
REPRESENTATIVE BUNDE asked whether, since this breaks some legal
ground in giving private citizens injunctive relief, they would
hear from the Department of Law on that perspective, including any
"global legal complications."
CHAIRMAN GREEN suggested that is what this is intended to
circumvent, because private individuals could take action too.
Number 1829
REPRESENTATIVE ETHAN BERKOWITZ commented that the right of a
private attorney general is emerging. He said it is also historic
and used to be called "qui tan actions," where people could sue on
behalf of a king who wasn't interested in pursuing legal action.
Representative Berkowitz stated, "Essentially, you have to have a
law that's not being enforced and someone interested in enforcing
it."
REPRESENTATIVE BUNDE asked whether there is a constitutional
problem here; there was no audible response.
CHAIRMAN GREEN asked whether anyone else wished to testify, then
closed public testimony.
Number 1870
REPRESENTATIVE DYSON said Representative Porter brings up an
excellent question and that he himself had met with the OPAG group,
which wants to be a clearinghouse and phone center, and which wants
to do counseling. This would give them the tools to do something.
Representative Dyson said as he understands it, they envision
themselves helping to counsel victims to apply the remedies here.
In addition, being a clearinghouse, they could tell whether reports
of a particular kind of fraud were coming into one place.
Number 1921
REPRESENTATIVE CROFT informed members he had sat in on a couple of
meetings of the Better Business Bureau (BBB), which now operates as
somewhat of a clearinghouse for Alaska, given that no one in the
Office of the Attorney General answers direct complaints. He noted
that the Office of the Attorney General has one and a half attorney
positions to do enforcement. Noting that Daveed Schwartz is the
one attorney, he asked Ms. Coster whether she is the "half."
MS. COSTER said yes.
REPRESENTATIVE CROFT explained that the BBB takes those calls, does
preliminary investigation, weeds out people who are disgruntled but
haven't been defrauded, and then refers cases to the Office of the
Attorney General. It is that step that has become the funnel. He
stated, "Either we pour a bunch of money into the AG's office, for
them to do the enforcement, or we have somebody else with the
ability to do the enforcement. But whether we do it through the
BBB or OPAG or some other formula for the clearinghouse, that
function needs to be there and is a problem that we've solved
different ways. But the enforcement is a funnel as well, a problem
as well."
Number 1975
REPRESENTATIVE PORTER said he had talked to the sponsor and several
others interested in the bill. He announced that at the risk of
sounding like Simon Legree, he must speak against the bill; he
thinks it is a great idea, but the implementation has some
problems.
REPRESENTATIVE PORTER recalled a telemarketing bill in a previous
legislature. He said most problems that he has been exposed to
which impact seniors result from telemarketing, some fraudulent and
some devious at best, and most of those problems are generated
outside of Alaska. Representative Porter stated, "This bill
doesn't get you closer to those folks at all. You can sue in this
court all you want, but unless you can get somebody in Detroit
that's doing this into this jurisdiction, that's not going to be
too helpful."
REPRESENTATIVE PORTER said he wonders why there isn't a court
fiscal note and advised against moving this from committee without
one. He discussed provisions of the bill relating to attorney fees
and said the courts now have difficulty determining what
"frivolous" means and have seldom imposed sanctions for these kinds
of reasons. He said he believes Alaska is the only state with Rule
82, which provides the prevailing party with a portion of attorneys
fees. He also said that to sue someone and not be held responsible
for that suit unless someone determines that it was frivolous is
quite a standard to overcome, and not a great incentive for
evaluating the merits of a case before it is filed.
REPRESENTATIVE PORTER added, "Most particularly, if that person
hires an attorney, there certainly isn't any motivation to not
pursue it to the bitter end, and as long as you might want to draw
that out, because you get guaranteed attorneys fees unless someone
determines that it's frivolous. Now, why would you want to set up
a situation where somebody could take ... an otherwise reasonable
business into court, go through an extended procedure, find that it
was without merit but didn't reach the level of 'frivolous,' and
still, this person has to pay attorneys fees? I don't think that's
a standard that you'd want to look at."
Number 2135
REPRESENTATIVE PORTER referred to the fact that a person doesn't
need standing to bring one of these suits. He said he knows of no
other situation where someone who is an unaffected party can go
into court in this manner. He indicated that a vengeful person
could get a business into court, with immunity, if they could find
something that didn't sound frivolous. "It's just too wide-open
for me," he commented.
REPRESENTATIVE PORTER suggested that OPAG's proposal will greatly
assist with the problem, and that OPAG would also cooperate with
the Office of the Attorney General and work with them like the BBB
does in putting cases together. "But I think more importantly, for
the misunderstanding kinds of cases, which some of these are, they
would be involved in mediation with local businesses, so that the
customer can be satisfied and the business won't be continuing this
kind of practice," he stated.
Number 2207
REPRESENTATIVE PORTER said the telecommunications aspect of it is
real, and the answer to that is a telecommunications bill that
would provide for bonding requirements, registration requirements,
and the ability of consumers to say no. Referring to prior
legislation, he commented, "That was one aspect of that bill that
I really liked. I would like to have the ability to tell my phone
company that I don't want anybody calling me. And if that's the
law, then anyone who wants to engage in telemarketing has to check
with the local exchange and find out if this person is or isn't one
of those that has said no. And if it's no, then it's against the
law to call me. And quite frankly, most folks that I've talked to
- or at least a lot of folks that testified on that bill - said,
'Boy, that's an opportunity I'd like to have, because I'd just as
soon make my own calls.' So, anyway, for all of those reasons, I
just have quite a problem with the bill and would be interested in
the court's view on what they think their impact would be."
Number 2251
CHAIRMAN GREEN stated his understanding that under Rule 82, there
is less than full recovery of fees.
REPRESENTATIVE PORTER explained that Rule 82 basically says that
prevailing parties should recover their attorney fees; it is a
sliding-scale percentage, based on the amount of damages. He said
he believes Alaska is the only state with a provision where the
prevailing party gets a considerable amount of attorney fees paid
for. In contrast, this bill provides that attorney fees are paid
for unless it can be established that the case was frivolous. "And
I don't see a definition for frivolous," he added.
Number 2293
CHAIRMAN GREEN asked if it is Representative Porter's understanding
that the process that OPAG is pursuing falls somewhere between
those two.
REPRESENTATIVE PORTER replied that as he understands it, with the
OPAG program, they wouldn't "bother the court system" unless they
had the wherewithal to get into court on a fraud case, through the
Office of the Attorney General. He added that there is a lot of
mediation capability between those.
Number 2335
REPRESENTATIVE ROKEBERG noted that HB 203 had been in the House
Labor and Commerce Standing Committee, which he chairs, the
previous year. They had worked with the sponsors to improve the
commerce aspects of the bill by providing additional ability to
claim legal fees if the defendant prevailed in the action and if
there was a competitive business aspect to it. Representative
Rokeberg said, "We also took the 'or otherwise aggrieved' section
out, which I think provides that there would be standing, because
there would have to be proof ... of financial loss." He said he
thinks the issue regarding standing is taken care of.
Number 2366
REPRESENTATIVE PORTER read from page 2, lines 15 and 16, which
says, "It is not necessary that a person suffer damages or
otherwise be injured by the unlawful act or practice in order to
bring an action under (a) of this section."
REPRESENTATIVE ROKEBERG said that was under equity, not under
Section 2, where there must be a monetary loss. He stated, "Up
here there is standing, in Section 2. But that's in their
injunctive relief, so that would be in equity rather than at law."
He then told members the House Labor and Commerce Standing
Committee had worked on this at two hearings, looking at the policy
and commercial aspects. It had been his intention to pass it on to
the current committee for full review, particularly regarding Rule
82.
REPRESENTATIVE ROKEBERG said minutes from a previous hearing
indicate that Mr. Schwartz felt there was a definition of vexatious
litigation or frivolous lawsuits under Rule 82 of the court rules
now; that had given him greater comfort, but there is nothing
statutorily in this state that speaks to that type of vexatious
litigation or frivolous lawsuits by definition, which he said he
would dearly love to see. He suggested that the current committee
focus on the issues raised by Representative Porter.
Number 2423
REPRESENTATIVE CROFT indicated he would answer as many of the
objections as he'd been able to write down. He stated, "But under
the general heading of, 'If not this, what?', I have a bill that
is still happily sitting in Labor and Commerce that provides for
adequate resources for the attorney general to do this, for the
attorney general to resume its state enforcement of consumer
protection laws. That has about a $300,000 fiscal note and is not
a complete solution." He indicated that when there were fewer
people in Alaska and more resources, it was closer to a million
dollars, which may be an appropriate level if it weren't for the
current fiscal situation.
TAPE 98-13, SIDE B
Number 0006
REPRESENTATIVE CROFT said going over some of the issues in reverse
order, there have been a couple of different telecommunications
bills. For one, a person who doesn't want to be called by
telephone solicitors can get a red dot on the phone listing, and
solicitors are not supposed to call. But what if they do? There
are no damages because there is no ascertainable loss of money or
property, even though the calls are irritating. It can be referred
to the Office of the Attorney General, where there are one and a
half attorneys who will get to it as time permits. But an
individual cannot currently get an injunction on his or her own.
REPRESENTATIVE CROFT pointed out that Rule 82 provides for
approximately 20 percent of attorney fees in the typical case. He
then said this bill solves it in two respects. First, it allows an
individual to get an injunction. And second, it says that as long
as the plaintiff wins, the plaintiff gets attorney fees. He
pointed out that the bill says, "If you win, you get your fees; if
you lose, they're not assessed against you." He emphasized that a
person doesn't get fees for a losing effort but that the 20 percent
is not assessed.
REPRESENTATIVE CROFT suggested this strengthens the reverse strike
of the business owner, in that under current Alaska law, if a
lawsuit is found to be frivolous, that can be a factor in awarding
full attorneys fees against the plaintiff; it is discretionary with
the judge. Here, it requires it.
REPRESENTATIVE CROFT told members that there is an enormous amount
of case law on what frivolous means. He stated, "And we could
attempt in this to summarize those in the various factual
situations. I just thought it was better to use a term of art that
in at least federal law - if not in state law - is defined. And if
we need to say, 'We mean it how the federal Rule 11 means it,' I
think we'd consider that. That would be fine, too. I didn't want
to clog it up ... with a definition that would fit all purposes,
but referring to that one would be fine."
Number 0145
REPRESENTATIVE CROFT said the OPAG proposal is a good one for a
number of reasons. An energetic group, a volunteer organization,
will probably save substantial money. But it will mainly do what
the Better Business Bureau does now. The BBB monitors calls, weeds
them out and does mediation, very active mediation when they have
their own BBB members because they want to see those resolved, but
they refer others as well.
REPRESENTATIVE CROFT told members, "The BBB has been doing, I
think, a good job. The concern there has been they're a business
themselves, who have some members and some non. And there's some
worry about them being responsible for consumer protection, when
they're basically a self-promoting business organization. There's
an inherent possibility for conflict, though I think they've
managed it so well that the conflict has not arisen; but there is
that potential."
REPRESENTATIVE CROFT stated, "Representative Porter said that we
couldn't get out-of-state defendants. I think we can. I mean, I
think under this, it's like any other lawsuit. If they have enough
contacts to this case, in particular, if they do business in the
state of Alaska, you can reach long-arm jurisdiction and bring them
into court. So, it fills the gaps that are left after we pass good
laws like the telecommunications law, the obvious question being,
'Who enforces them?' And to come back to the summary, if not this
- if not private individuals enforcing it - then who?"
Number 0210
REPRESENTATIVE BERKOWITZ advised members that he is supportive of
this legislation, although having gone through protracted
discussion of tort reform the previous year, he said he is somewhat
amazed they are contemplating the possibility that frivolous suits
could continue to exist here. He said it seems, however, that this
legislation is a responsible follow-through with budget cuts. He
stated, "If we're going to cut budgets to the Department of Law,
and we're going to disable them, prevent them from having
sufficient manpower to do the consumer protection that they had
been doing, then we have to have some kind of complement in place.
And the complement that this bill suggests is that private
citizens, as individuals and as businesses, can come forward and
enforce the law that otherwise would go unenforced."
REPRESENTATIVE BERKOWITZ continued, "Now, hypothetically, we have
to look at who's going to use this law, because the Department of
Law, through the AG's office, isn't pursuing very many of these
cases. They've got one and a half attorneys. These are somewhat
factually intensive, time-consuming pursuits. They're going to go
after the big-ticket items. You know, if there's something small
and irritating that affects a consumer, an individual consumer,
they're going to be able to raise it in the courts. I think that's
a good thing, when an individual feels that he has access to
government that way, and has access to redress."
Number 0271
REPRESENTATIVE BERKOWITZ pointed out that this legislation will
also benefit business, because a business that is somehow subjected
to unfair practices by a competitor could utilize this Act, even if
the Office of the Attorney General didn't pursue it.
Representative Berkowitz stated, "And I think what that does is
give businesses that are pursuing fair practices the opportunity to
level the playing field and bring down those that are using the
laws or evading responsibility. And to me, this is a pro-business
kind of bill. And it allows businesses and individuals to use the
law as it was written, when the attorney general isn't able to do
so."
Number 0297
REPRESENTATIVE BUNDE asked that Representative Dyson respond to the
concern about bringing into court in Alaska defendants from out of
state, particularly for a relatively small claim that the Office of
the Attorney General would not be likely to pursue.
REPRESENTATIVE DYSON deferred to Ms. Coster.
MS. COSTER expressed her belief that this private injunctive relief
is going to be really helpful. She said that usually, it is not
just one person who is being defrauded. If someone is conducting
business in Alaska, even if the business is located out of state,
that person is usually defrauding a number of consumers. She
stated, "And when you have an organization such as AARP or the
Better Business Bureau or AKPIRG or our office, when we did receive
complaints, that you're going to get a number of these complaints.
And so, while one person may have been harmed to the tune of $200
and it doesn't seem like ... it's all that important, when you have
10 or 20 or 100 or thousands that are being harmed, then going
after the person who is out of state becomes much more realistic,
much more something that a group or person will want to do, because
the damages there ... are a lot higher."
MS. COSTER continued, "And I agree with Representative Croft. ...
In telemarketing or any other businesses where they are located out
of state, there's a long line of case law that talks about the
jurisdiction, what's necessary in order to bring someone within the
state's jurisdiction. And basically, ... if you are conducting
business in Alaska, then we're going to have jurisdiction over you,
'we' meaning someone in Alaska will ... be able to file a suit
against that person, and a court can claim jurisdiction over them
to address the grievance or whatever the problem is that they're
filing the suit over. So, on an individual basis, it becomes
harder. If you have a number of them, ... it makes it a lot more
reasonable to pursue the claims."
Number 0431
REPRESENTATIVE BUNDE referred to earlier discussion about bonding
people who want to do business in Alaska. He asked, "Would the
current legislation remove the necessity for that? Or would the
current legislation application be improved by the application of
that bonding requirement?"
MS. COSTER replied that right now, telemarketers are required to
register in the state. She asked whether he was proposing that at
the time that they register, they also must post a bond.
REPRESENTATIVE BUNDE responded, "There's been that discussion,
yes."
MS. COSTER replied, "So, I guess what could happen is, if you post
a bond and it's in favor of persons who have been defrauded, you
would have a ready source, I suppose. A person who has been
defrauded by the telemarketer would file suit and they would claim
damages, to be taken out of the bond. Then they would have ... a
ready access to payment, if they could prove their claim. And so,
a bond would actually be helpful ... in that way. In other words,
you can get a judgment against someone in a private cause of
action, but then it's another thing to collect on the judgment.
And having a bond available ... would be helpful, if I'm reading
what the intent would be for the bond."
REPRESENTATIVE BUNDE said he wasn't speaking to the specifics but
more on a philosophical level.
Number 0511
CHAIRMAN GREEN mentioned frivolous lawsuits between two business
people and the ability to get an injunction in such a situation.
He also referred to Representative Porter's suggestion that there
may be a significant fiscal note from the court. He asked whether
Ms. Coster could comment on that.
MS. COSTER answered that she is not qualified to speak on a fiscal
note from the Alaska Court System. However, the court system is
set up to handle lawsuits, from small claims all the way through
complex litigation. While she cannot say whether this would
increase it, that seems unlikely. She pointed out that a deterrent
is written into the statute that if the lawsuit is found to have
been filed purely to gain a competitive edge, the plaintiff would
pay the attorney fees.
Number 0583
REPRESENTATIVE PORTER said he understands that there are mechanisms
to bring someone into court who is not a resident of the state. He
asked, "But if they don't choose to show up, is that not just a
case that's, in effect, tried in absentia?"
MS. COSTER replied, "Sure, you can get defaults, absolutely. If
you are able to serve the person with the complaint for injunctive
relief and they fail to answer, then you can get an injunction by
default."
REPRESENTATIVE PORTER asked how to serve an injunction in Detroit.
MS. COSTER explained that if the person ever attempted to engage in
the sort of conduct that was the basis for the injunction in the
first place, in Alaska, it would be in violation of the injunction.
So, that person would have to actually engage in business in Alaska
again. If the fraudulent person didn't come back to Alaska to
engage in the fraudulent conduct, the plaintiff would have actually
accomplished what was intended.
Number 0645
REPRESENTATIVE PORTER said he was referring more to telemarketing
operations, where no one is physically in Alaska. He asked what
the incentive would be to stop fraudulent telemarketing.
MS. COSTER replied that if a person received an injunction and then
violated it, the court could enter an order enforcing the
injunction; it would be a contempt of court, and the court could
order fines. Those fines could be reduced to judgments that can be
executed on property out of state. She said there are various
means of enforcing injunctions if a person ignores them. She noted
that the courts can order jail time for some contempts, but she
wasn't anticipating that here.
Number 0693
REPRESENTATIVE PORTER said he doesn't disagree with that arduous
process, but most of the people they are trying to reach with this
are judgment-proof, especially to the extent that what they might
have would not be worth going through the process to get, going to
Detroit to try to find out whether they own a car, for example.
REPRESENTATIVE PORTER suggested that if they had the telemarketing
bill in place, as was mentioned, they could get the offenders
through this bond. That way, there would be something to attach,
right here. He said making the requirement for the bond would cull
a lot of "flaky folks" in the first place. "And then those that
decide to get flaky do so at the risk of that bond, and they know
it," he stated. "It's a heck of an incentive, and a lot better
than trying to go through this process, whether it's by a citizen
or a private attorney or the AG's process, of getting a judgment
and then ... having the cost of going to Detroit to find out if
this person is, one, locatable, two, has any assets, and then
trying to go through the procedure of seizing them out there."
Number 0758
REPRESENTATIVE PORTER said the BBB does limited mediation, but only
with its own members, and they don't even have someone to answer
the phone all the time, let alone the ability to do much with
nonmembers. The OPAG program expands that to everybody. He agreed
that the wherewithal of the Office of the Attorney General has been
reduced, but he doesn't think the answer to that is to adopt
something that he believes has great potential of increasing costs
to businesses and to the court system.
Number 0817
REPRESENTATIVE PORTER referred to mention of tort reform and
stated, "One thing that we tried to put into the tort bill was a
whole lot of incentives to settle these things early, and to settle
them reasonably. I don't see those incentives in here. I see some
incentives that are ... just the opposite."
Number 0845
REPRESENTATIVE JAMES said she really supports the purpose of the
bill. However, it is broad and addresses all of the various kinds
of fraud that could be out there. She said she doesn't know the
numbers on the various kinds of fraud, including in-state, out-of-state, telema
they are trying to address telemarketers, telemarketing legislation
would provide better protection.
REPRESENTATIVE JAMES explained that her biggest concern about
consumer fraud is for people who are vulnerable, including senior
citizens or disabled people. She suggested making this more
specific either to particular kinds of fraud or to particular
vulnerable consumers whose lives are interfered with, rather than
leaving it open. She commented that as she listened to earlier
testimony, she visualized a sign in front of an attorney's office
that says, "If you have a consumer complaint, come here; I'm ready
to sue." She sees that potential as the bill is written. She
restated that she really likes this idea of not having to depend on
the Office of the Attorney General for doing these kinds of things.
REPRESENTATIVE JAMES told members that when her own mother
experienced consumer fraud in Oregon, she herself had checked with
the consumer protection office in Oregon. She would have had to
provide almost all the information in double copies, et cetera,
just like putting together a whole lawsuit, and send it to the
attorney general's office in Oregon, after which they might -
Representative James emphasized that word - do something about it.
She never followed up with that, she said. She called the people
herself and talked to them once, but then they would never return
her phone calls. This occurred because her mother was a senior
citizen, and they were calling senior citizens and trying to sell
them a security system that Representative James said had no effect
at all.
Number 1019
REPRESENTATIVE JAMES concluded by saying it seems that the whole
broad spectrum of consumer fraud is too big to address in such a
simple fashion. She again suggested being more specific about the
kind of fraud being addressed and/or about the particular consumers
that they are wanting to protect. She said if anyone could respond
in a way that makes her feel more comfortable with those issues,
she'd be happy to hear it.
Number 1048
REPRESENTATIVE BERKOWITZ mentioned a bumper sticker he'd seen that
says, "An armed society is a polite society." He said it seems
that this bill arms businesses, so that they don't have to wind up
in court all the time. This is a tool they can use to ensure that
their competition is behaving properly. He then referred to
fishing over the line at Egegik; fishermen had told him they want
enforcement there, because the honest fishermen are being hurt by
the dishonest practices of others. Representative Berkowitz said
that sort of lesson is as true in the consumer arena.
REPRESENTATIVE BERKOWITZ said he believes that in Title 11, the
criminal code, there are strong definitions in AS 11.46 that talk
about fraud and deceptive business practices, which might alleviate
some of Representative James's concerns about the breadth of this
bill. He said just by the nature of the terms here, the $500, this
allows small businesses and individuals access. He pointed out
that in spite of all the concern about lawyers reaching out and
trying to make a case out of anything, lawyers must pay rent,
insurance and overhead; they can't afford to take small cases,
regardless of the merits of the case, and so a lot of smaller cases
wind up being dropped by attorneys. But that doesn't mean that
justice is still being served.
REPRESENTATIVE BERKOWITZ stated, "And I think when we allow people
to get their own justice in the legal setting, then we've given
them another reason to be confident in government. And this is an
opportunity for us here in Alaska to set a standard that says,
'We're doing things in a way that's most responsive to our people.'
Because if you're being harmed out in the Bush, ... there's not
even an attorney there. And this is a way for you to get access to
a court and get access to some kind of fairness. So, I understand
the concerns about frivolous lawsuits. I trust the businesses of
Alaska not to engage in frivolous lawsuits, ... just as I trust
most Alaskans not to be frivolous. This is a serious thing, going
into court. And those that are not respective of that, well,
they're going to get punished. They're going to have to pay
attorneys fees. And if you go up against a corporation that has
deep pockets enough to keep an attorney, even a small bit of
attorneys fees ought to be a big disincentive for an individual."
Number 1183
REPRESENTATIVE CROFT referred to the scope of the bill and noted
that on page 1 it says an act declared unlawful by AS 45.50.471.
He said it specifically refers to the unlawful trade practices, as
defined in the statute. He explained that they had considered
making it for older Alaskans. He stated, "The older Alaskans
themselves were very adamant that this wasn't just their issue,
that it was an issue for everybody. They were maybe targeted more
specifically, but that it was a general law enforcement/good
business practices issue."
REPRESENTATIVE CROFT referred to mention of settlement incentives.
He stated, "The business protection section that we added in Labor
and Commerce [page 2, beginning at line 27], it says, 'if the court
finds that the action was brought by the plaintiff to obtain a
competitive business advantage and the plaintiff is not the
prevailing party' - in other words, they didn't win; you don't need
to sanction them if they won, but if they didn't win - 'the court
shall' - not may - 'award the defendants ... full reasonable
attorneys fees.'"
REPRESENTATIVE CROFT said that is as strong a hammer as they can
get in this area, noting that "shall award full" is 100 percent.
He stated, "And in addition, as we discussed, when they find it's
frivolous - and I'd be glad to discuss how we might clarify that
term with reference to federal Rule 11 or whatever - 'shall award
full' for the frivolous. That's stronger than any other provision
of Alaska law in frivolous suits. So, we think we've put some very
strong incentives not to have frivolous or competitive suits out
there."
Number 1281
REPRESENTATIVE CROFT stated, "It is true that if you're going to
not have the public attorney general, you've got to give some
incentive for a private attorney general. And there are some
there, but we've tried to draw them very narrowly. Those were on
Representative James's points."
REPRESENTATIVE CROFT said on the bonding requirement, he thinks it
is a good idea, and they'd considered it a couple of different
times. He said the problem they kept running into is that it would
increase costs for legitimate continuing telemarketers, and the bad
ones might not obtain a bond anyway. They would then be running
around trying to get people not only for their fraudulent activity
but for their failure to bond. Representative Croft noted that
failure to bond is easier to prove and to that extent, it might be
worthwhile. However, it still requires a judgment and a process
before taking someone's money that they've put up.
REPRESENTATIVE PORTER commented, "But it's here."
Number 1358
REPRESENTATIVE CROFT responded, "Well, it's here, but you still
have all those hoops of, 'Can I, for a $200 toaster or bad ad or a
zero loss, right? ... Your failure to stop when I have the red
dot.' Representative Porter's absolutely right: There are going
to be some people that are judgment-proof, and some of them are
operating telemarketing scams that will close up shop and move the
next day. I don't have a magic solution to that continuing
problem. ... This puts more teeth into it, so that you can - when
you find them - get them easier; you can get more teeth in an
injunction. But ... it's not absolute."
REPRESENTATIVE CROFT referred to the issue of court costs. He
stated, "Because we put some sideboards on it, because we put some
countervailing incentives not to file frivolous or purely
competitive suits, I think it was difficult for the court system to
see whether this would lead to a tremendous amount more of
litigation, a little, a shift in who was filing the litigation.
And they just didn't feel comfortable estimating a little more, a
lot more, no more costs on that."
REPRESENTATIVE CROFT concluded by saying, "Standing is a
constitutional requirement; you have to have a case in controversy.
But you can define those in statute. I mean, you can say, 'We give
you the right to do this.' And as Representative Berkowitz said,
there's a sort of history to do it. So, it's not a constitutional
bar; it's just saying, 'All things being equal, you have to have
been injured unless the law gives you some other reason to do it.'"
Number 1433
REPRESENTATIVE ROKEBERG said to Ms. Coster that he had recently
been taking a short course in bonding relating to business
activities. There are generally fidelity bonds and insurance
bonds, to be done in the realm of employee dishonesty and so forth,
as well as other performance-type bonds that can be posted by the
insurance industry. Representative Rokeberg expressed concern,
however, about whether anyone even underwrites a bond against a
breach of injunctive relief, or whether that exists. He also
expressed concern that a bonding requirement may be a constraint on
interstate commerce, resulting in the claim of a constitutional
issue. He asked, "Is there anything in existing statute that'd
require a business entity doing business in the state of Alaska to
do some type of bond against their potential future dishonesty?"
Number 1501
MS. COSTER replied, "I know for construction contractors, they are
required to post a bond, and it is payable to persons who file wage
claims, who, if they have failed to pay their employment taxes, and
I don't know what else there is, what other entities. I know there
are a couple other bases for filing against that bond. So, I don't
know that that addresses your question directly as to whether it's
for dishonesty, but it is for specific purposes, and ... basically
what the person has to do in order to claim under it is to file a
lawsuit and name the bond, name the company, they have to prove ...
that they meet the requirements, in other words, that they're a
wage claimant and they haven't been paid. And then, once they get
the judgment, then they're paid out of the proceeds of the bond
until ... the proceeds are all gone. ... I'm sure there are a
number of entities that are required to post bonds. That's the one
that I'm the most familiar with."
Number 1579
REPRESENTATIVE ROKEBERG acknowledged that a bond may solve some
problems, but he said they need to know whether it is available or
whether it would run afoul of the federal constitution.
CHAIRMAN GREEN commented that they might be able to stretch it to
specific performance, "saying that you're going to operate a
legitimate business."
REPRESENTATIVE ROKEBERG emphasized that he is wondering whether
they could find an underwriter willing to write that.
Number 1619
REPRESENTATIVE DYSON directed members' attention to the major thing
that changes here: injunctive relief. There is no monetary gain
for that, only public service. He cited an example and said
without a problem rising to the level where the Office of the
Attorney General steps in, there is no way to stop some activities.
A person not yet hurt by a defective product, for example, couldn't
seek injunctive relief. This bill gives such a person a chance to
stop the activity.
REPRESENTATIVE DYSON said Representative Porter had brought up
something that intrigues him, which he hadn't thought about: Is
there a way for this particular legislation to be misused if
someone wants to make money off of it? Representative Dyson
indicated the only thing he sees that could be misused is the
treble damages provision on page 1, line 11. He offered to work
with Representative Porter and his office to do what was done with
tort reform, to let the punitive damages go to the state.
Number 1758
REPRESENTATIVE DYSON pointed out that this does nothing to stop the
mediation process; he said in some ways, it encourages that,
because it requires written notice to the offender asking that they
stop the activity before going to court. He said they had referred
this to the Chamber of Commerce in Anchorage, to see whether they
had problems; nothing had come back.
REPRESENTATIVE DYSON commented that he would be glad to see any
improvements that the collective "we" can come up with, adding that
nothing here precludes bonding, which intrigues him a little bit.
He also restated that this legislation works very well with what
OPAG wants to do.
REPRESENTATIVE DYSON told members that after the election, he had
gone to senior citizens and others, asking what he could help with,
and this is what came out of it. While Representative Croft has
acted as a consultant, putting a lot of work into it and providing
a lot of valuable insight, Representative Dyson emphasized that the
idea behind this is his own.
Number 1861
CHAIRMAN GREEN asked about the possibility of bonding being a two-way street, t
people but that there would be a penalty for seeking an improper
injunction, for example. He asked whether that had come up in the
House Labor and Commerce Standing Committee.
REPRESENTATIVE ROKEBERG said that is why they'd added the provision
about competitive business advantage. He suggested there is enough
interest by the majority of the committee members to do something
with this bill. He said he'd hate to see it die, although it still
needed to be massaged a little more.
Number 1976
REPRESENTATIVE JAMES said she doesn't feel comfortable making
business people pay anything more than they already do. A bond is
there for protection, but if someone even challenges a bond, that
is a black mark. She said she doesn't know that having a bond is
any better than having an insurance policy, which would provide
protection to the business person because the insurance company
would go to bat for the business. She said she'd rather see it
without that requirement in there.
Number 2066
REPRESENTATIVE PORTER commented that the bonding he was familiar
with in previous proposed legislation only addressed telemarketing
from out of state.
REPRESENTATIVE JAMES said that makes sense.
REPRESENTATIVE PORTER suggested that mainly that is what they are
talking about, especially for seniors.
Number 2104
REPRESENTATIVE BERKOWITZ characterized the bonding issue as a huge
kettle of fish. He said it is the sort of proposal that needs a
lot of close scrutiny because of the consequences to business.
While bonds provide security to the consumer, they also constitute
a barrier to entry for small businesses, in particular. He said
that philosophically, he has a hard time with them, because they
impede the free flow of commerce and aren't really consistent with
how he believes a capitalistic market should work. They also tend
to penalize the law-abiding business, which must put forth security
without any showing that they've done something wrong or intend to
do anything wrong. He said he agrees with Representative James.
REPRESENTATIVE ROKEBERG restated that he doesn't think they're
available.
Number 2188
CHAIRMAN GREEN agreed with Representative Rokeberg that there are
some things in the bill that perhaps need modified. He asked
whether Representative Dyson had picked up the concerns and would
like to readdress this.
REPRESENTATIVE DYSON indicated he would come back with a sponsor
substitute or committee substitute.
Number 2239
REPRESENTATIVE PORTER added that the court fiscal note would be
relevant.
REPRESENTATIVE ROKEBERG suggested they also need more testimony
about the court rule.
REPRESENTATIVE PORTER acknowledged it does affect Rule 82 and would
require a court rule change.
KEVIN JARDELL, Legislative Administrative Assistant to
Representative Joe Green, Alaska State Legislature, speaking as
committee aide and attorney, advised members that a provision in
Rule 82 says, "except as provided by law."
REPRESENTATIVE CROFT responded, "That's where we went around, and
that was that testimony in Labor and Commerce. They gave us a
loophole in that for just this kind of thing."
REPRESENTATIVE ROKEBERG added, "And they said there was discretion
on the part of the courts to define -- was it discretion or is it
defining Rule 82 by vexatious litigation?"
Number 2302
REPRESENTATIVE CROFT stated, "In effect, it gives us the power to
do some things with attorneys fees that is not true of court rules
generally, except as provided by ...."
REPRESENTATIVE JAMES referred to the fiscal note issue and said she
doesn't understand where this is going to be costing the court.
She stated, "I thought the court fees were supposedly to be paid."
REPRESENTATIVE PORTER said this provision, if it were law, would
provide an opportunity for a lot more lawsuits. He stated, "And I
think the court would like to evaluate that and ... see what the
impact on their workload would be."
Number 2384
REPRESENTATIVE BUNDE stated that he likes the bill.
CHAIRMAN GREEN said, "I think we all do."
REPRESENTATIVE JAMES concurred.
REPRESENTATIVE BUNDE encouraged the sponsor to not take serious,
determined discussion as being adversarial or negative.
REPRESENTATIVE DYSON thanked the committee. [HB 203 was held
over.]
HB 267 - DOMESTIC VIOL. & SEXUAL ASSAULT DISCLOSURE
TAPE 98-14, SIDE A
Number 0006
CHAIRMAN GREEN announced the next item of business would be HB 267,
"An Act relating to domestic violence and sexual assault; and
providing for an effective date." The bill had been heard by the
committee on February 2, 1998.
Number 0054
REPRESENTATIVE PORTER advised members that his staff had done some
research, as did Legislative Legal Services personnel. He said
they had found a provision that answers the question of whether
federal funding in this area is in jeopardy. Referring to a
memorandum dated 2/9/98 from the Alaska Network on Domestic
Violence and Sexual Assault, he then commented that the network had
done the same research and came up with the same conclusion. He
said that "actually in the federal register, there is specific
language that says that the confidentiality requirements should not
be interpreted to mean to interfere with a legitimate law
enforcement and specifically mentions missing persons, that they
should respond that a missing person is safe within the confines
... of the facility."
REPRESENTATIVE PORTER stated, "I don't want to testify for them.
I don't know if you all got a copy of their position on it, but
their position basically is that this is unnecessary, since it
would be redundant to that. I guess my response to that would be,
'I don't think so.' They thought that it would jeopardize, up
until this issue brought it up for them to look. And how many
other folks out there are under the same opinion? Notwithstanding
the fact that they would put out a newsletter, next week we'll have
a new person in some shelter that will have the same problem."
REPRESENTATIVE PORTER continued, "I would rather that this
permissive - not required - language be in state law, so that
somebody doesn't have to go to the bother of -- some folks don't
even know what a federal register is. It just seems to me that
putting in law something that is law in the federal law, and makes
it only provide that it may be done, so that you don't think that
it can't be done, is certainly not stepping into the concerns that
we've heard expressed. So, ... that's my little pitch."
Number 0257
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and
Sexual Assault, Department of Public Safety, apologized for not
being present the previous week because of a prior commitment. She
then stated, "It is true what you found under the VOCA, Victims of
Crime Act, that although we do have to abide by the federal
confidentiality guidelines, they do not intend for that to preclude
a domestic violence or sexual assault program telling law
enforcement whether or not someone is in fact a missing person, if
they have that information."
MS. ANDREEN continued, "However, we also receive the Family
Violence Prevention and Service Act funds, under which we are also
required to provide confidentiality." Ms. Andreen said this past
week they contacted the grant administrator in Washington, D.C., to
ask how this would play out with a missing person situation. She
stated, "And their response back to us - which we don't have in
writing, which we can get in writing - was that ... that must be
determined by each and every program. So, to have this law would,
it appears, violate one of the requirements that we have under the
Family Violence Prevention and Service Act, which is another
federal funding source, under the Department of Health and Human
Services."
REPRESENTATIVE NORMAN ROKEBERG responded, "But that's not what you
just said, though. Each program determines it? Excuse me, Mr.
Chairman, but ...."
Number 0363
BRUCE CAMPBELL, Legislative Assistant to Representative Pete Kelly,
Alaska State Legislature, spoke on behalf of the sponsor. He
asked, "But the question I had, if I may ask Jayne this, is the
possibility of this communication which this bill provides for, is
that prohibited under this? And would the regulatory powers of
your ability - of the council, as directed on page 2 of the bill -
would that not be able to take that into account and deal with that
... in state regulation? ... Or does the question to the ... group
you asked in Washington, D.C., was that question if we required
communication, when, in fact, we're not requiring it, we're just
providing for the option of communication? We're not requiring
this communication. We're not requiring anyone [to] violate
federal law. We're not requiring anyone to do that. We are asking
that this not be a violation of state law, and we're saying that
under this paragraph, regulations should be adopted to carry this
out. And that certainly would allow the commission to deal with it
under -- and recognize federal law."
Number 0458
MS. ANDREEN responded, "First of all, I want to say that the
council's current regulations do cite the privileged communications
statute. We require all of our grantees to abide by it. So,
Section 1 basically of this I don't believe is needed, because I
don't see that there would be a change. The change is incorporated
in the statute. That would just be rolled into the existing
regulation that we have; if there is a change in the statute, then
the programs need to abide by that."
MS. ANDREEN continued, "As far as the second part of the question,
'Would the way it's written as "may" circumvent the federal?' ...
And unfortunately, I was not the person who talked ... to Bill
Riley in Washington, D.C.; our project coordinator, Sandy Stone,
did. And she said that his response to her was: This would most
likely be a circumvention of their intention ... under the federal
guidelines."
Number 0553
REPRESENTATIVE BERKOWITZ asked whether they were talking about the
"may" on page 3, line 27.
MS. ANDREEN said yes.
REPRESENTATIVE BERKOWITZ said he wasn't sure he should point this
out, because he wasn't particularly supportive of the bill. He
then stated, "But that says the victim counselor may communicate.
It's not mandatory. It's permissive, which is gutless, if you ask
me. There's no point in doing this legislation. Is that correct?"
Number 0580
REPRESENTATIVE PORTER asked, "I thought I understood you to say
that ... their position would be that that would be a decision that
would have to be made at the program level?"
MS. ANDREEN replied, "Correct. At the local program -- each
domestic violence and sexual assault program."
REPRESENTATIVE PORTER responded, "That's what we're saying."
REPRESENTATIVE ROKEBERG commented, "We are the local program."
REPRESENTATIVE PORTER asked, "So, what is the problem? I guess I'm
missing something."
REPRESENTATIVE CROFT said, "I'm missing something, too. The local
program level is different from us."
Number 0619
REPRESENTATIVE ROKEBERG indicated if a state law mandates and
doesn't take that into consideration, then the local program has to
consider it; they have to speak to it in regulation. He indicated
he believes that is what the bill sponsor is saying.
Number 0630
REPRESENTATIVE PORTER stated his understanding that the intent of
this legislation is to tell local programs that they may release
information to a law enforcement agency that they know the person
is not missing and is safe, and that is all. And the reason for
the bill is that there is confusion as to whether shelters may or
may not do that.
REPRESENTATIVE PORTER said, "And what I'm hearing you say is that
first of all, the other -- the other one is overcome; they don't
lose the DV [domestic violence] money. There's some other fund
that I'm not even aware of, but now I think you're saying that they
think this is a problem unless the program has the ability to make
that decision themselves, which is precisely what the bill does.
So, what's the problem?"
Number 0690
REPRESENTATIVE BERKOWITZ asked the reason for this legislation,
since it says "may." He suggested it becomes a symbolic question.
He stated his belief that everyone present supports both good law
enforcement and domestic violence shelters. He stated, "So, we've
got a collision. And we've got to figure out which symbolism we're
choosing, because this bill has no effect on the ground - none
whatsoever - the way I read it."
CHAIRMAN GREEN said, "Other than permitting it to be done."
Number 0743
MR. CAMPBELL explained that they would not have drafted this bill
except that they were told repeatedly that the principle and prima
facie reason for not communicating with law enforcement was not
because shelters didn't want to, or not because there were
problems, but because it was illegal and a violation of state law.
MR. CAMPBELL stated, "So, we said, 'We've read the state law. Our
attorneys read the state law, and they said, "We don't think so,
but if it's a problem, we'll clarify it."'" Mr. Campbell said it
is a very fine point, and it has been crafted to provide the
maximum flexibility. He stated, "It does not say you have to
provide communication to the law enforcement official who calls
you, because that, we learned last week, ... may not be
appropriate. ... And it does not say, 'You shall provide
communication.' It says, 'You may,' and we're encouraging ... the
council to set up regulations to provide some statewide conformance
with it, I guess."
Number 0806
REPRESENTATIVE CROFT proposed a scenario where the legislature
passes this and the WIC-CA shelter [Women in Crisis-Counseling and
Assistance, Fairbanks] in two years agrees they have the authority
but choose to not use it. He asked whether that is the solution
they are after.
Number 0820
MR. CAMPBELL replied that they may have a good reason for not
telling, which may be as simple as a personality conflict. He said
if that personality conflict is real, that is something they don't
think is appropriate to force in state legislation; therefore, they
did not use the word "shall." He suggested the legislature cannot
be aware of all the incidents and all the complexities of shelter
workers' responses.
Number 0849
REPRESENTATIVE ROKEBERG expressed confusion about whether there are
two federal laws that conflict.
CHAIRMAN GREEN asked Ms. Andreen whether that is what she is
saying.
Number 0877
MS. ANDREEN replied, "The VOCA guidelines clearly state that we
must guarantee client confidentiality for the clients. However,
they note, as an exception in their federal guidelines, that it's
not intended to override or supersede state law, such as reporting
child abuse, or in such instances where - and they specifically
talk about a missing person - where law enforcement wants to know,
'Is the person missing or not?' So, those are like two exceptions
that they have built in, under their explanation of the federal
guideline."
Number 0904
CHAIRMAN GREEN suggested that if state law said it was a
requirement, that would indicate that they would not be in
conflict.
MS. ANDREEN replied, "Not under the VOCA, Victims of Crime Act,
which is under the Department of Justice. The conflict comes with
the Family Violence Prevention and Service Act, which is under the
Department of Health and Human Services."
Number 0930
MR. CAMPBELL commented that he would have agreed with
Representative Berkowitz prior to 20 minutes ago. He then stated,
"But now that there is something else that clearly needs to be
dealt with in detail by regulation, and where the regulation needs
to be complied with. It makes it more important to have this laid
out ... so that the council does in fact go through the regulatory
process under state law and make those one consistent statewide
package, so ... the various shelters ... have a sense of what
they're supposed to do, and so there isn't this conflict between
two very important entities, the state troopers and (indisc.)."
Number 0958
REPRESENTATIVE BUNDE said if he understood the VOCA explanation
correctly, the exception is for the missing person, if there is a
state law. He stated, "And perhaps we'd need the law for no other
reason than to say, 'We do have a statute that says you will say
yes or no ... to the missing person question,' because if we don't
have a statute ..., then VOCA says they don't have to report it
because it's not conflicting with the state law."
Number 0997
REPRESENTATIVE CROFT asked Mr. Campbell, "I guess what I'm hearing
you saying is this part on ... page 3 is not as important anymore
as the regulatory authority. What you want to see, that the 'may'
may codify just what they could do anyway, but the regulations are
what now the sponsor sees -- and if that's the truth, ... the
regulations couldn't go any broader than the statutory authority we
have. We're not going to say 'shall' in the regulations where we
say 'may.' We're not going to say, 'You must do "X," "Y" and "Z."'
Right?"
Number 1049
REPRESENTATIVE PORTER said, "Just to respond to Representative
Bunde's concern, I think it -- it said it didn't -- it certainly
would not preclude following a reporting requirement that a state
law, as ours does have for child abuse -- but then, it didn't say
that the missing person had to be a state law addressing missing
persons or reporting that; it just said a missing person report."
REPRESENTATIVE CROFT asked, "Can I read that? Because I think like
everyone, I'm getting more and more confused. [He read from an
unspecified document.] 'Furthermore, this confidentiality
provision should not be interpreted to thwart the legitimate
informational needs (indisc.). For example, this provision does
not prohibit a domestic violence shelter from acknowledging, in
response to inquiry by a law enforcement agency conducting a
missing person investigation, that the person is safe in the
shelter' - or safe anywhere, I guess. It does not prohibit, but
this statute does prohibit it, or it says the privilege generally
applies and has no exception for it. So, you can have a federal
law that does not prohibit it but does not mandate it and a state
law that prohibits it. This doesn't have the text of the statute,
it just has the ...."
REPRESENTATIVE PORTER commented that a state law can be more
restrictive than a federal law but cannot conflict with it.
REPRESENTATIVE CROFT asked whether that is what they have here or
not.
REPRESENTATIVE JAMES suggested it is more restrictive.
Number 1126
REPRESENTATIVE PORTER stated, "What this provision is trying to do
is to point out that there isn't anything in anybody's law that
prohibits this, and that you may do it. It isn't trying to tell
them to do it. I think it's probably implying that you should,
without good cause, but it is not saying you will do this. It is
saying there aren't any laws that say you may not." He indicated
that in talking to the sponsor and reading the bill, he believes
that is the only intent.
CHAIRMAN GREEN asked whether Ms. Hugonin could clarify this.
Number 1166
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and
Sexual Assault, came forward. She stated, "And in our memo that we
submitted, what I was trying to say is that I agree with the
Representative that the VOCA regulations do provide for that
possibility, and that we still think [that] without a statutory
change, the shelters and programs in the state are willing to hear
that and respond appropriately. So, it's our intention to work
with everybody to develop a comprehensive, consistent policy and to
make sure that people understand that they have the ability to make
that disclosure, if in fact that's going to be part of their
policy."
MS. HUGONIN continued, "So, we are going to send out a legal memo.
We are going to try to work with the state subcommittee on law
enforcement that's developing model protocols and ask that a
missing persons protocol be developed for local programs to look at
and to adapt for their use. And I don't think we're disagreeing
with you about the intent and how to carry it out. What we're
saying is we still think it does not have to go toward a statutory
change." She said they understand that a clarification needs to be
made, they are willing to make that clarification, and they are
willing to try to help people continue to work it out locally.
MS. HUGONIN reminded members that this is not a widespread problem
or one that happens daily with missing persons. She stated, "This
was a very specific problem that happened in Fairbanks recently,
and that happened several years ago in Juneau. And so, we are
trying ... to address it."
Number 1262
REPRESENTATIVE BERKOWITZ asked whether Ms. Hugonin is going to
write a letter to all the domestic violence shelters in Alaska,
saying essentially that under current law, a victim counselor may
communicate to law officials.
MS. HUGONIN replied that that is what they are going to say, that
VOCA requirements provide for an exception in responding in a
missing persons situation.
Number 1289
REPRESENTATIVE BERKOWITZ asked for confirmation that Ms. Hugonin is
not opposed to the language of this legislation but just the
concept of legislating something of this nature.
MS. HUGONIN replied, "Exactly."
[Representative Kelly, sponsor, arrived.]
Number 1314
REPRESENTATIVE BERKOWITZ advised Representative Kelly that Ms.
Hugonin had just informed the committee she will write a letter to
all the domestic violence shelters in the state, telling them the
effective language on page 3 of the bill, "a victim counselor may
communicate to the law enforcement official." Representative
Berkowitz said Ms. Hugonin's problem with the bill is she doesn't
think it should be in statute, because it is already resolved, it
is already part of the law. He asked whether that would suffice.
Number 1340
REPRESENTATIVE PETE KELLY, sponsor of HB 267, replied that he
thinks the statutes were vague, which created the original problem.
He stated, "Now we're led to believe that all of a sudden the same
attempts that have been going on before, to make it across the
board, to all the shelters operating across the board the same way,
will all of a sudden work. I don't think it will. I think we need
the statute. I think we need ... the regulatory portion of the
bill as well, so that the council can write the regulations to be
consistent with ... the federal regulations. And I think it is
very necessary to do the statutes. The statutes do no harm as they
are, because all they are asking the shelters to do are what
shelters are already doing throughout the state, with the exception
of a few of them. But they can do some good, because they will
clarify the issue. And I think we've seen from the federal
register that they will do no harm, because that is already ... the
case in regulation."
Number 1401
REPRESENTATIVE BUNDE said he would have to excuse himself to attend
another meeting. He then likened the bill to chicken soup,
agreeing with the sponsor that it couldn't hurt.
Number 1427
REPRESENTATIVE CROFT asked Ms. Hugonin, "If you're going to send a
letter saying we may, and we should all figure out what our
protocols are, how can you do that without this provision in there?
I mean, don't you have to say in your letter, 'Under federal law we
may, but under state law we can't, and now let's figure out
protocols'? And how would one do that?"
MS. HUGONIN said that is a good question.
REPRESENTATIVE CROFT asked whether it would help to take one of the
other exceptions out.
Number 1456
MS. HUGONIN asked, "So, is it your understanding that without this
in here, the state law prohibits someone from disclosing that
information?"
REPRESENTATIVE CROFT said he thinks it is a privilege, with limited
exceptions. Without permission of the person who owns the
privilege, they can only do the exceptions, which are listed as (1)
through (8). He suggested that without exception (9) [page 3,
lines 25 through 30 of the bill], which says "may," Ms. Hugonin
cannot write that letter. If he were counsel advising Ms. Hugonin,
he would tell her the letter should say that "under federal law you
can, under state law you cannot; therefore, really, the conclusion
is ... you cannot tell any law enforcement agency without their
permission."
CHAIRMAN GREEN added, "Without adopting (9)."
Number 1499
REPRESENTATIVE PORTER commented, "Logistically, that might be a
real problem. You may want to do that, but you can't get a hold of
them, because you know they might be in Kentucky with their sister
and you just can't get a hold of them for that permission, and this
search could go on for weeks, and ...."
MS. HUGONIN said, "But, of course, then we wouldn't know that they
were not missing, ... if they were in Kentucky."
REPRESENTATIVE PORTER said under state law, they may not be able to
say that, without this provision in law.
Number 1523
MS. HUGONIN responded, "Oh, I see what you're saying. Well, I
certainly understand that it looks like the bill is going to be
passed out of this committee. I would ask that on page 2, line 25,
that AS 18.66.210, we add the number (9) there, because what you're
asking for is for a specific clarification on the confidentiality,
and not on the other eight exceptions."
MS. HUGONIN advised members she had previously spoken to the
sponsor about her concern with the title. She asked that
consideration also be given to tightening the title.
Number 1563
REPRESENTATIVE CROFT said he had talked with the sponsor and had
drawn up an amendment to make the title as tight as possible. He
noted although his written amendment said "client," that is not a
term of art; he suggested using "victim" or "person" instead,
whichever the council or the sponsor prefers.
CHAIRMAN GREEN supported the use of "person."
REPRESENTATIVE KELLY said he had no objection to the title change.
REPRESENTATIVE CROFT made a motion to adopt Amendment 1, using the
word "person." Amendment 1, changing the title, now read:
Page 1, line 1, following "to":
Insert "the duties of the Council on Domestic Violence
and Sexual Assault; allowing domestic violence and sexual
assault counselors to reveal to public safety officers whether
a person is missing or not missing"
Number 1640
CHAIRMAN GREEN asked whether there was an objection to Amendment 1.
There being no objection, Amendment 1 was adopted.
Number 1653
REPRESENTATIVE CROFT made a motion to adopt Amendment 2, "to make
on page 2, line 25, it be subsection (9)." He explained that there
are some other exceptions that are problematic or that at least
would take a lot of discussion. He stated, "The 'excited
utterance' one was one that leaps out; I understand there's a weird
history to it. But you wouldn't want to require regulations on all
of these exceptions." He specified, "I'm adding (9) in parentheses
after 210 and before the semicolon."
Number 1681
REPRESENTATIVE JAMES objected for the purpose of discussion. She
asked the reason for the objection to (1) through (8). She asked
whether Representative Croft was saying some of those are not
valid. She further asked, "Are they sufficient on their face to
not have regulations implementing how they would be addressed?"
Number 1703
REPRESENTATIVE CROFT stated his understanding that this is an
exception to the privilege, so it is now in the area of discretion.
He stated, "What the regulations say, it must require a victim
counselor to divulge information under this. So, ... we're taking
a step from 'can do the privilege' into 'must.'" He then expressed
uncertainty about that.
REPRESENTATIVE JAMES said it is to the extent allowed, which she
thinks is pretty clear.
REPRESENTATIVE ROKEBERG asked for confirmation that it says to
draft regulations on (9), but not on the rest of them.
Number 1734
REPRESENTATIVE BERKOWITZ said it is to limit the amount of
regulations that need to be drafted.
REPRESENTATIVE JAMES again asked whether they are saying that there
already are sufficient regulations for (1) through (8).
Number 1746
MS. ANDREEN advised members that the council's regulations
currently cover all of AS 18.66.210. She stated, "It doesn't
delineate (1) through (8); it covers all of the exceptions under
the privileged communications, which is why I said earlier I don't
think that this section is even needed. If (9), (10) and (11) are
added on, they will be covered by [the] council's regulations ...."
Number 1767
REPRESENTATIVE CROFT asked whether this changes "may" to "shall."
MS. ANDREEN said that would be her concern.
REPRESENTATIVE CROFT read from the new language on page 3,
beginning at line 23, which says regulations adopted under this
paragraph must require a victim counselor employed by a grantee to
divulge information to the extent allowed under AS 18.66.210.
REPRESENTATIVE JAMES said "allowed" is "may."
MS. HUGONIN responded, "Only on number (9)."
Number 1788
MS. HUGONIN advised members, "My concern, and the reason why I
asked for that, is because these are also testimonial privileges.
It's not just, for example, to report child abuse to DFYS [Division
of Family and Youth Services] or to law enforcement. It's
privileges that have to do with requiring victim counselors to
testify in court. And I think that it's an area of law - although
I'm not a lawyer, so I apologize for not being able to present the
argument as articulately - but I think that's an area that is
outside of the scope of regulation (indisc.--papers rustling) more
difficult to interpret through regulation. There are instances
when these exceptions come forward, and a defense attorney would
try to subpoena records. And what happens is that there is a
motion entered on behalf of the victim or a victim counselor to
quash that subpoena, and the judge makes an in camera decision
about whether or not one of the exceptions actually does apply.
So, I think ... it's a different area than what you're interested
in establishing in number (9)."
Number 1833
REPRESENTATIVE ROKEBERG said he would like to move this bill. He
suggested that leaving (9) in there, which is specific to the new
addition, is appropriate. He also suggested if there is a problem
later, it could be taken care of.
Number 1851
REPRESENTATIVE KELLY stated, "I think we could take care of it
easily right now if we changed 'must require' to 'must allow' and
leave it 18.66.210. Forget (9). She's already writing regulations
on ... (1) through (8), and she said if you added 15 more, she'd
have the authority to do that under this. But if it's 'must
allow,' ... there is no danger of it changing the 'may' to a
'shall.'"
REPRESENTATIVE CROFT agreed.
REPRESENTATIVE PORTER said he likes it. It makes it permissive and
is a nice, neutral statement.
Number 1884
CHAIRMAN GREEN noted that with the amendment to Amendment 2, it
would now change "require" to "allow" [page 2, line 23] and not add
"(9)" to line 25.
REPRESENTATIVE CROFT accepted that as a friendly amendment.
REPRESENTATIVE JAMES removed her objection.
CHAIRMAN GREEN asked whether there was a further objection.
Hearing none, he announced that Amendment 2 was adopted.
Number 1898
REPRESENTATIVE ROKEBERG made a motion to move HB 267, as amended,
from committee with individual recommendations. He added that
there was no fiscal note.
Number 1914
REPRESENTATIVE BERKOWITZ objected. He explained that they were
passing legislation through the committee that already exists and
is therefore sort of frivolous. In addition, it symbolically puts
domestic violence (DV) shelters in a position where the expectation
of protection is lower than it is at an individual's residence or
in a place other than a DV shelter, which he believes is
symbolically the wrong step to take.
Number 1940
CHAIRMAN GREEN requested a roll call vote. Voting to move HB 267,
as amended, from committee were Representatives Croft, James,
Porter, Rokeberg and Green. Voting against it was Representative
Berkowitz. Representative Bunde was absent. Therefore, CSHB
267(JUD) moved from the House Judiciary Standing Committee by a
vote of 5-1.
ADJOURNMENT
Number 1962
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 3:15 p.m.
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