Legislature(1997 - 1998)

04/01/1998 01:06 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
         HOUSE JUDICIARY STANDING COMMITTEE                                    
                   April 1, 1998                                               
                     1:06 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. 383                                                             
"An Act relating to expected deaths that occur at home or in a                 
health care facility."                                                         
     - MOVED CSHB 383(JUD) OUT OF COMMITTEE                                    
HOUSE BILL NO. 406                                                             
"An Act relating to subsistence uses of fish and game."                        
     - SCHEDULED BUT NOT HEARD                                                 
HOUSE BILL NO. 344                                                             
"An Act relating to paternity establishment and child support;                 
relating to the crimes of criminal nonsupport and aiding the                   
nonpayment of child support; and amending Rule 37(b)(2)(D), Alaska             
Rules of Civil Procedure; and providing for an effective date."                
     - SCHEDULED BUT NOT HEARD                                                 
(* First public hearing)                                                       
PREVIOUS ACTION                                                                
BILL: HB 203                                                                   
SPONSOR(S): REPRESENTATIVES(S) DYSON                                           
Jrn-Date    Jrn-Page           Action                                          
 3/18/97       738     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 3/18/97       738     (H)  L&C, JUDICIARY                                     
 4/23/97               (H)  L&C AT  3:15 PM CAPITOL 17                         
 4/23/97               (H)  MINUTE(L&C)                                        
 5/05/97               (H)  L&C AT  3:15 PM CAPITOL 17                         
 5/05/97               (H)  MINUTE(L&C)                                        
 5/06/97      1547     (H)  L&C RPT  CS(L&C) 3DP 2NR                           
 5/06/97      1548     (H)  DP: COWDERY, SANDERS, HUDSON                       
 5/06/97      1548     (H)  NR: ROKEBERG, BRICE                                
 5/06/97      1548     (H)  ZERO FISCAL NOTE (LAW)                             
 5/06/97      1548     (H)  REFERRED TO JUDICIARY                              
 1/30/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 1/30/98               (H)  MINUTE(JUD)                                        
 2/09/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 2/09/98               (H)  MINUTE(JUD)                                        
BILL: HB 383                                                                   
SHORT TITLE: EXPECTED DEATHS                                                   
SPONSOR(S): REPRESENTATIVES(S) DAVIS                                           
Jrn-Date    Jrn-Page           Action                                          
 2/06/98      2239     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 2/06/98      2239     (H)  L&C, JUDICIARY                                     
 2/25/98               (H)  L&C AT  3:15 PM CAPITOL 17                         
 2/25/98               (H)  MINUTE(L&C)                                        
 2/27/98      2453     (H)  L&C RPT  5DP 1NR                                   
 2/27/98      2453     (H)  DP: KUBINA, RYAN, HUDSON, ROKEBERG,                
 2/27/98      2453     (H)  SANDERS; NR: COWDERY                               
 2/27/98      2453     (H)  ZERO FISCAL NOTE (H.L&C/DHSS)                      
 4/01/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
WITNESS REGISTER                                                               
PATRICK HARMAN, Legislative Assistant                                          
  to Representative Fred Dyson                                                 
Alaska State Legislature                                                       
Capitol Building, Room 428                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-2195                                                     
POSITION STATEMENT:  Presented HB 203.                                         
REPRESENTATIVE FRED DYSON                                                      
Alaska State Legislature                                                       
Capitol Building, Room 428                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-2195                                                     
POSITION STATEMENT:  Sponsor of HB 203.                                        
PAM LaBOLLE, President                                                         
Alaska State Chamber of Commerce                                               
217 Second Street, Suite 201                                                   
Juneau, Alaska 99801                                                           
Telephone:  (907) 586-1254                                                     
POSITION STATEMENT:  Testified against 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:  As committee aide, discussed conceptual                   
                     amendment to CSHB 203(L&C).                               
REPRESENTATIVE GARY DAVIS                                                      
Alaska State Legislature                                                       
Capitol Building, Room 513                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-2693                                                     
POSITION STATEMENT:  Sponsor of HB 383.                                        
MICHAEL PROPST, Medical Examiner                                               
Division of Public health                                                      
Department of Health and Social Services                                       
5700 East Tudor Road                                                           
Anchorage, Alaska 99508                                                        
Telephone:  (907) 269-5090                                                     
POSITION STATEMENT:  Testified on HB 383.                                      
CHRIS STOCKARD, Captain                                                        
Department of Public Safety                                                    
450 Whittier Street                                                            
Juneau, Alaska 99802                                                           
Telephone:  (907) 465-4306                                                     
POSITION STATEMENT:  Testified on HB 383.                                      
ACTION NARRATIVE                                                               
TAPE 98-52, SIDE A                                                             
Number 0001                                                                    
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee               
meeting to order at 1:06 p.m.  Members present at the call to order            
were Representatives Green, Porter, Croft and Berkowitz.                       
Representatives Bunde, Rokeberg and James arrived at 1:25 p.m.,                
1:28 p.m. and 1:08 p.m., respectively.                                         
HB 203 - ACTIONS FOR UNLAWFUL TRADE PRACTICES                                  
Number 0050                                                                    
CHAIRMAN GREEN announced the first order of business would be HB
203, "An Act relating to actions for unlawful trade practices,"                
sponsored by Representative Dyson.                                             
PATRICK HARMAN, Legislative Assistant to Representative Fred Dyson,            
Alaska State Legislature, came before the committee.  He stated                
that the last time the legislation was heard there were several                
concerns expressed.  He stated that some amendments have been                  
drafted for the committee to consider.  Mr. Harman referred to                 
Amendment P.3 and said it defines the word "frivolous."  It allows             
the defendant to recover attorney fees if the matter before the                
court is deemed frivolous.  The amendment read as follows:                     
Page 2, following line 31:                                                     
     Insert a new subsection to read:                                          
          "(d) In this section, "frivolous" means                              
               (1) not reasonably based on evidence or on existing             
     law or a reasonable extension, modification, or reversal of               
     existing law; and                                                         
               (2) brought to harass the defendant or to cause                 
     unnecessary delay or needless expense."                                   
Number 0339                                                                    
REPRESENTATIVE ERIC CROFT moved that Amendment 1 be adopted.  He               
explained that the definition comes of Rule 11 in case law, both               
federal and state.  It's pretty straight forward, he stated.                   
REPRESENTATIVE BRIAN PORTER objected.                                          
REPRESENTATIVE ETHAN BERKOWITZ it merely restates what the existing            
law is.                                                                        
Number 0390                                                                    
REPRESENTATIVE PORTER asked if (1) and (2) must both occur or                  
should the "and" be an "or".                                                   
REPRESENTATIVE CROFT said he would look up the law.  He suggested              
the committee consider the other amendments.  He then withdrew the             
Amendment 1.                                                                   
Number 0500                                                                    
CHAIRMAN GREEN stated the committee would address Amendment 2, P.6,            
which follows:                                                                 
Page 2, following line 16:                                                     
     Insert a new section to read:                                             
          "Sec. 45.50.536.  Mediation.  Notwithstanding the other              
     provisions of AS 45.50.471 - 45.50.561, a civil action under              
     AS 45.50.531 or 45.50.535 may be submitted to mediation under             
     the Alaska Rules of Civil Procedure.  The mediation must begin            
     within 30 days after the court's order for mediation.  During             
     mediation, the court may, if it is determined appropriate by              
     the court, enjoin the defendant from engaging in the act or               
     practice that is the subject of the civil action."                        
Page 3, following line 1:                                                      
     Insert a new bill section to read:                                        
          "*Sec. 5. AS 45.50.536 enacted by sec. 3 of this Act only            
     applies to causes of action that accrue on or after the                   
     effective date of this Act."                                              
MR. HARMAN explained the amendment would bring mediation in                    
bringing a matter to the court's attention.  He said they first                
attempted to have mandatory mediation, but that would involve a                
court rule change.  He said it was rewritten so that the court may             
order mediation in these matters.  Mr. Harman said as was pointed              
out in the last hearing, many cases that may be brought to court               
are basically misunderstands that could be resolved by mediation.              
This amendment would bring the mediation option into the dispute               
Number 0600                                                                    
REPRESENTATIVE PORTER referred to reading Rule 100 and said he                 
believes it is something that the court can currently do.  He                  
stated he doesn't know what the effect of the amendment would be.              
CHAIRMAN GREEN said it codifies it and then as we move down this               
track, perhaps we can get some support in the future for it being              
mandatory.  While this is not mandatory, he believes that in courts            
throughout the country this seems to be a method that seems to                 
work.  He stated he has been told that we don't use it to a                    
significant degree in Alaska.                                                  
REPRESENTATIVE BERKOWITZ asked who was the source of the language              
in Amendment 2.                                                                
MR. HARMAN responded that it was prepared by Terry Banister, but he            
doesn't know the source of the language.                                       
Number 0671                                                                    
REPRESENTATIVE CROFT said it adds a couple of concepts that aren't             
in Rule 100, maybe arguably under Civil Rule 100 general mediation.            
It sets up a time limit as to when it must begin.  He said they                
thought that was appropriate because in this situation there is the            
possibility of a violation of the consumer protection rules.  He               
said, "If you're doing that, you really ought to get this thing                
resolved pretty soon.  You're stopping one or the other party from             
doing something they had a right to do before.  So it's under the              
general ideas of Rule 11 [100], but it sets a time limit on it and             
it makes it clear that there is the injunction power still."                   
REPRESENTATIVE BERKOWITZ referred to the 30 days for beginning and             
asked if that essentially means to begin calendaring mediation or              
does it mean that actual formal mediation begins.  He stated that              
there might be circumstances where someone says, "I can't do this              
within the next 30 days, I'm out of town, I've got an operation                
going, the mediators are booked up, conflict of schedules."                    
REPRESENTATIVE CROFT said he would think the mediation has begun if            
you've started calendaring it.  The court could work around that               
understanding.  He said he does think it's appropriate to include              
some sort of encouragement to get it going.                                    
REPRESENTATIVE BERKOWITZ stated that clarifies it.                             
CHAIRMAN GREEN asked if there was an objection to Amendment 2.                 
There being none, Amendment 2 was adopted.                                     
Number 0832                                                                    
CHAIRMAN GREEN indicated the committee would address Amendment 3,              
P.5, Bannister, which follows:                                                 
Page 2, following line 2                                                       
     Insert a new bill section to read:                                        
          *Sec. 3 AS 45.50.531 is amended by adding new subsections            
      to read:                                                                 
          (i) If a person receives an award under (a) of this                  
     section, the court shall direct that the amount of the award              
     that exceeds actual damages be deposited into the general fund            
     of the state.  This subsection does not grant the state the               
     right to file or join a civil action to recover punitive                  
          (j) The commissioner of administration shall separately              
     account for money received under (i) of this section that is              
     deposited in the general funds.  The annual estimated balance             
     in the account may be appropriated by the legislature for the             
     expenses of the fair business practices section of the                    
     Department of Law.                                                        
MR. HARMAN explained that the amendment is an attempt to restate               
tort reform.  He said that we don't want to have a situation where             
people are seeking punitive damages to profit from.  The amendment             
diverts a portion of punitive damages to the general fund.  He said            
we want to stay focused on solving the problem and not creating                
unnecessary lawsuits where people are trying to profit if the                  
driving force is to collect damages if they exist and not to profit            
from punitive damages.                                                         
Number 0875                                                                    
REPRESENTATIVE FRED DYSON interjected that he believes it reflects             
the standards set forth in the tort reform bill that was passed                
last year.                                                                     
REPRESENTATIVE BERKOWITZ said one of the concerns he has is it                 
seems to him that some of the consumer protection actions might be             
for relatively small amounts of money in which case the expenses               
and pursuing an action could exceed the reward.  The punitive                  
damage might help compensate for the costs of the action.  He said             
that is one problem he sees with putting all the punitives over to             
the state.  There is also the problem that if an attorney does this            
on a contingency basis, how would you do the math?  Oftentimes, the            
only way an attorney would take a case like this is to do it on a              
contingency basis especially if the amounts involved were small.               
REPRESENTATIVE GREEN said he would move Amendment 3 so it would be             
before the committee.                                                          
REPRESENTATIVE PORTER objected.  He stated that to the point of the            
cost might exceed the recovery, he thinks that under the other                 
sections of the bill that if it's not found to be frivolous the                
prevailing party gets their costs.  Representative Porter said he              
doesn't that you would be awarded punitive damages unless you                  
prevailed and he doesn't think that if you prevailed, you would                
have presented a frivolous lawsuit.  Consequently, your costs are              
covered by other sections of the bill.  The award is never going to            
be eaten up by costs in the area of punitive damages.                          
Number 0990                                                                    
REPRESENTATIVE DYSON asked Representative Porter if in the tort                
reform legislation didn't have half of the punitive damages going              
to the state and half going to the plaintiff.                                  
REPRESENTATIVE PORTER responded that 50 percent went to the state              
and the deduction for contingent fees was taken from that amount               
before the allocation.                                                         
REPRESENTATIVE DYSON said believes that there was a                            
miscommunication with the drafter of the amendment.  He stated that            
the intention was that half of the amount would go to the general              
fund and half would go the plaintiff.  If that is case, on line 5              
it should read, "The court shall direct that one-half the amount of            
the award exceeds the damage deposit to the state or 50 percent."              
Number 1090                                                                    
REPRESENTATIVE CROFT explained that it isn't the intent of the bill            
to make anybody rich.  He said, "It's simply to allow those cases              
that cannot now be filed - and not enough of them are covered by               
the attorney generals office to be filed.  The reason I think it's             
drafted this way is because there is a treble damage provision in              
here.  So you could say half, as tort reform did, but gets you in              
the odd case, I think, of treble damages and you in effect getting             
one and a half.  And at some level in the discussion it just became            
cleaner to say you get your actual damages, you get attorneys fees             
to allow you to bring the action, but you don't get to keep a bonus            
reward, that goes to the state."  He stated it is more restrictive             
than tort reform as tort reform would do half, but because it's a              
treble damage thing it didn't make any sense to triple it and then             
have it.  If you win, you get your attorney fees and nothing extra.            
It takes even more of the additional and gives it to the state.                
REPRESENTATIVE BERKOWITZ referred to subsection (i) and said it                
doesn't grant the state the right to file, but it doesn't deprive              
the state of the right.  The state can file an action, the state               
can pursue it.                                                                 
REPRESENTATIVE PORTER explained that the normal inclusion of that              
language is so that it won't provide an opportunity for the state              
to become a party to try collect their 50 percent of the punitive              
damage.  That is the only exclusion it is referencing.                         
Number 1227                                                                    
REPRESENTATIVE CROFT said it isn't meant to impinge any other right            
except to say that just because you have a potential interest in               
half this judgement doesn't mean you can get involved.                         
REPRESENTATIVE BERKOWITZ withdrew his objection to the adoption of             
Amendment 3.                                                                   
CHAIRMAN GREEN asked if there were further objections.                         
REPRESENTATIVE NORMAN ROKEBERG objected.  He said that some                    
language was removed from the bill in the Labor and Commerce                   
Committee that had to do with attorney fees.                                   
REPRESENTATIVE CROFT stated, "We added some language on page 2,                
line 27, about the competitive business advantage, and that was the            
Labor and Commerce addition and it remains."                                   
REPRESENTATIVE ROKEBERG removed his objection to the adoption of               
Amendment 3.                                                                   
CHAIRMAN GREEN asked if there were further objections to Amendment             
3.  There being none, Amendment 3 was adopted.                                 
Number 1412                                                                    
CHAIRMAN GREEN announced the committee would address Amendment 1.              
REPRESENTATIVE CROFT moved that Amendment 1 be adopted.                        
AN UNIDENTIFIED SPEAKER objected.                                              
REPRESENTATIVE CROFT said he would move to amend Amendment 1 to                
delete "and" and insert "or" on line 5.   He stated he took it from            
Rule 11 which does say "and", but what they say is you shall                   
certify that this true and that is true.  What it really means is              
if either one is not the case, you're in trouble because you have              
to certify both.   He said the transcription was correct, but by               
moving it from one context to another it should be "or".                       
CHAIRMAN GREEN asked if there was a further objection to Amendment             
1.  There being none, Amendment 1 was adopted.                                 
REPRESENTATIVE ROKEBERG referred to adopting Amendment 1 and said              
to his knowledge, for the first time of the history of the state it            
codifies a frivolous lawsuit outside of the court rules.  He said              
other than the court rules, there has been no definition of a                  
frivolous or vexatious lawsuit in the state of Alaska.                         
Number 1466                                                                    
REPRESENTATIVE PORTER said he understands the motivation of the                
bill and he applauds it as he thinks there is a void that needs to             
be filled.  He then pointed out that he has concerns about the                 
method of filling the void.  He said, "In the debate on this bill              
and some others that I've heard on the same subject it frequently              
comes back to a discussion of telecommunications fraud, and I think            
we should attack telecommunications fraud with riffle and not a                
shotgun.  And that's what I think this kind of represents.  I am               
uncomfortable with the fact that it provides, to my knowledge,                 
perhaps the only definition of 'frivolous,' but it also -- the only            
allowance for someone with no standing to bring a lawsuit.  I don't            
think that there is any other provision in law that allows that to             
happen.  That, Mr. Chairman, is so available for abuse especially              
with the consideration that we're going past Rule 52 in the                    
allocation of attorneys fees, and this person that brings this suit            
doesn't have to pay the prevailing party's or any portion of the               
prevailing party's attorney fees and costs unless the very high                
standard of that suit having been frivolous is met.  I appreciate              
the accommodation of that definition, but still reasonably high                
standards."  He said for those reasons he can't support the bill               
but he supports the idea.                                                      
Number 1560                                                                    
REPRESENTATIVE DYSON informed the committee that since the last                
hearing on the bill, he attended a public hearing at the Chugach               
Senior Center.  There was an immense amount of interest.  There is             
a telephone scam that is going on which was discussed.                         
Representative Dyson said people were calling and saying, "You can             
get a free eye exam and glasses for $59."  When people went there              
to get it, as soon as the exam was done they were told, "your                  
particular eye condition is not covered here, but for $79 or your              
particular eye condition that the exam shows doesn't qualify you               
for the eye ware.  But for another $79 - no $150, we'll fix you up             
with the eye glasses."  Then when you tell them, "No, I can't                  
afford that," then they say, "okay, the exam is $79."  One of the              
two reasons that we have chosen to allow a person who has not been             
injured there, in order to file suit under existing state law you              
have to have been taken by that.  If you say, "This is a scam," and            
walk out of the door and don't pay them and are, therefore,                    
uninjured unless you argue for the loss of your time, you don't                
have standing.  This allows someone who saw the scam and didn't get            
taken in to do it.                                                             
Number 1650                                                                    
CHAIRMAN GREEN said, "There was some concern expressed that maybe              
Amendment 2 - we didn't have it on record as having been moved even            
though we've adopted it.  So I would, for the record, say again                
move Amendment 2.  And seeing no objection, it's adopted."                     
Number 1650                                                                    
PAM LaBOLLE, President, Alaska State Chamber of Commerce, came                 
before the committee to testify on HB 203.  She said she the                   
chamber's problem is there doesn't have to be any wrong done to you            
to be able to bring a lawsuit.  If you happen to be misled in your             
thinking that it was a wrong done to anybody, then you don't have              
to pay attorney fees as long as it wasn't deemed to be frivolous.              
Ms. LaBolle said nobody wants a business to get or have a bad name             
or to be able to take people unfairly.  She said their problem is              
that if you have a "mom and pop" grocer and some says that their               
scales are tipped or whatever and brings a suit against them.  Then            
the grocer is found to be innocent, they will still have all the               
costs of their lawsuit and there could a any number of underlying              
reasons that nobody ever finds out.  The bottom line is that the               
small business is left with attorneys fees that might be their                 
retirement.  She said, "If the court rules on attorney fees are                
good in all other cases, then why should this be an exception?  Why            
should it be more just to do it in this case and to not -- for                 
somebody to be able to come in, not be affected personally, come in            
and file a suit, it costs somebody else money and walk away?  We               
don't understand that, that's our problem."                                    
Number 1825                                                                    
REPRESENTATIVE BERKOWITZ stated that he reads the bill entirely                
different.  He pointed out that in Section 3, subsection (b), you              
have to first provide written notice that you see an unlawful act.             
Failure to correct the unlawful act at that time can lead to an                
action.  Representative Berkowitz said the perspective that                    
everyone has had with the bill is that it is a question of a                   
consumer going against a seller.  With this provision, it allows a             
competitor to complain about an unfair trade practice.  He referred            
to the mom and pop grocery that might be victimized by an unfair               
suit could equally bring some kind of action against the huge                  
grocery chain that's moving in and engaging in unfair practices.               
He said it seems to him that there is an opportunity for Alaskan               
small businesses to level the playing field to make sure that when             
they engage in business that they're engaged in a fair business                
MS. LaBOLLE said she understands when there is a wrong, we need to             
try and correct it.  She said, "If you don't have the courage of               
your convictions to try to stop something that you're willing to               
put your money where you're mouth is, so to speak, then how                    
committed are you to the fact that you're trying to right a wrong?"            
Number 1925                                                                    
REPRESENTATIVE BERKOWITZ asked Ms. LaBolle to respond to the second            
part of his question regarding the bill enabling the smaller                   
competitors to level the playing field.                                        
MS. LaBOLLE responded, "I would say that small competitors - if                
they believe that they are being wronged should be willing to put              
their money up to take it to court.  If they believe they're wrong             
and take it on in court, let the judicial system decide and then               
pay the attorney fees if they were wrong."                                     
REPRESENTATIVE BERKOWITZ said, "You own this mom and pop grocery               
store, someone says your scales are slighted.  You say, 'No they're            
not.'  They bring you to court.  If you're scales are off then                 
you're doing something unfair in which case the award of attorneys             
fees against you is - you would agree appropriate.  And if your                
scales are not off, this is a frivolous lawsuit because there is no            
- I believe the amendment we adopted, it's not reasonably based on             
evidence.  So the backstop is there to prevent unfair accusations."            
MS. LaBOLLE asked, "How much more involved then is the lawsuit that            
you then have to carry this on that much further to have the big               
debate over evidence, frivolous and all those things?"                         
REPRESENTATIVE BERKOWITZ said he would let the sponsor answer the              
Number 2013                                                                    
REPRESENTATIVE CROFT said the purpose of both the warning and the              
mediation provision was to get enough notice up-front so that you              
would have the basic underlying facts.  He said "If you continue to            
bring a suit when it's not based on any underlying fact as the                 
definition clarifies, it's frivolous.  But I think it does come                
down to a policy decision on whether it's appropriate for                      
individuals to enforce these rights or solely rely on the state to             
do through state attorneys.  This is not a unique system or                    
provision.  In particular, the Civil Rights Act modeled on it                  
because they just knew there was not going to be enough attorneys'             
general in the nation to enforce this law, and they put in this                
very simple kind of system that private individuals could do and               
the way that was affected was an attorneys fee shifting provision              
like this.  We can either fund a large state bureaucracy to do                 
this.  We can fail to fund it and have it not done or we can                   
empower people to do it on their own.  And we've tried to put very             
careful sideboards on it so that things that go outside of the norm            
are penalized.  But it simply impossible for a person defrauded for            
a small amount and if help from the state attorney general is not              
forthcoming for them to pursue a lawsuit, they can be clearly right            
and have it not be cost effective to bring the suit.  We wanted to             
have the decision made is there merit to this suit or not.  If                 
there is merit and you win, you get your attorney's fees.  If there            
is so little merit it's frivolous, you may be in very deep                     
trouble."  Representative Croft said it comes down to a                        
philosophical idea of where this should be done, from the state                
level or trying to empower people to enforce these laws themselves.            
Number 2120                                                                    
MS. LaBOLLE asked if it is Rule 82 that says that the plaintiff --             
the prevailing party pays the attorney fees of the other.                      
REPRESENTATIVE CROFT clarified pays a portion of the fees and it is            
usually a pretty small portion.                                                
MS. LaBOLLE said if the philosophy of Rule 82 is good for                      
everything else, why should we make an exception.  She said that               
there is a concern that exceptions are being made to laws.  Groups             
come up against businesses all the time and they don't pay a 'lick'            
of the costs.  This is just one more potential for that to happen.             
CHAIRMAN GREEN stated that he has been advised that there are a                
couple of exceptions of Rule 82.  Suites regarding workers comp or             
suits based on violent crime doesn't fit into this.                            
REPRESENTATIVE CROFT said there are those complaints that aren't               
followed up on.  There is one and a half attorneys pursuing these              
matters and they have to prioritize them.                                      
REPRESENTATIVE BERKOWITZ said there is an agenda of cutting the                
state budget which has led to a reduction in the attorney generals             
available to pursue these types of actions.  As a consequence, we              
have to develop an alternative and the bill is an alternative.  He             
said if you want to increase the state budget and if the chamber               
wants to go on the record as putting more money into the attorney              
generals office, he is sure they would be happy to get the support.            
MS. LaBOLLE said what that comes down to is business pays for it               
one way or the other.  Business is what is providing the taxes that            
is keeping the state running and business will pay the cost of the             
legislation if it becomes law.                                                 
Number 2280                                                                    
REPRESENTATIVE PORTER pointed out that the problem he has is he                
looks at how it can be abused and not how it can work.  He referred            
to the warning and said if a business person doesn't believe that              
they have committed a violation, a warning won't be helpful.                   
Representative Porter referred to the example of the scales and                
said he totally disagrees with the assertion that the definition of            
frivolous lawsuits would preclude the awarding of that case or the             
attorney fees.  Evidence is a matter of weight and not a matter of             
it is or it isn't.  If the plaintiff took the product that was                 
weighed on the scale home and weighed it on their bathroom scales              
and found it was off, he is sure that would be a reasonable                    
evidence basis, but then in trial when that particular scale was               
measured and it was found out that the bathroom scale was off, it              
wouldn't be frivolous, but it would be stupid.  You would have just            
cost a business a whole lot of money.                                          
TAPE 98-52, SIDE B                                                             
Number 0006                                                                    
REPRESENTATIVE JAMES asked to hear the argument again as to why                
anybody can file this claim without having been damaged, and                   
without being the injured party.  She likes "that you have to go               
tell them," which she believes is a good idea.  She also thinks the            
mediation, which is a "may," is a good idea.  However, she shares              
some of the concerns mentioned by Representative Porter and Ms.                
REPRESENTATIVE JAMES noted that they are talking about small                   
amounts.  She suggested the $79 mentioned by Representative Dyson              
is a good example; it may be a lot of money for someone on Social              
Security or a fixed income, and it is certainly cruel and                      
unforgivable.  However, she said, if she had been damaged that                 
amount, she would walk out, not pay, and challenge them to try to              
collect it from her.  She suggested that the presumption throughout            
government that we have to protect everyone from themselves and                
from others creates a dependency by the public, and people don't               
believe they have to take care of themselves.  She cited some                  
examples from her own experience.                                              
Number 0121                                                                    
REPRESENTATIVE DYSON responded that most of the pressure for this              
has been from senior citizens, and every senior citizen group he               
knows of in Alaska has been very enthusiastic about this.  He said             
that someone who had walked out of the optometrist's office and                
refused to pay would not have standing under state law to help                 
prevent this from happening to others.  To go to court, that person            
would have to buy into the scam and pay in order to demonstrate                
damage.  Representative Dyson pointed out this also provides the               
ability to get an injunction; that wasn't available before.                    
REPRESENTATIVE DYSON next referred to Ms. LaBolle's comments and               
said he shares the concerns of all businesses, especially small                
ones, about actions against them.  He suggested it would have a                
positive effect for legitimate Alaskan businesses, because when                
scam artists come here from elsewhere, including by phone, there               
will be people empowered to stop the illegitimate ones.  He                    
believes  Alaskan businesses will prosper as the flimflam artists              
are enjoined, stopped and penalized.                                           
Number 0215                                                                    
REPRESENTATIVE PORTER asked whether either sponsor had looked at               
"plugging the hole" of requiring the completion of the fraudulent              
transaction.  He suggested it would be just as valid to say that a             
person who went all the way through the procedure with the                     
eyeglasses, as described, but then didn't pay and said it is a                 
scam, should be entitled to bring an action for that fraudulent                
attempt.  Representative Porter added, "I don't know what would                
preclude it, an amendment to the law that would allow that to be a             
fraudulent practice without the culmination of the payment."                   
Number 0245                                                                    
REPRESENTATIVE CROFT replied that they had been trying to meet two             
concerns.  Daveed Schwartz had told them he doesn't believe someone            
who had walked out without paying could bring suit under current               
law.  In addition, there are people who have been defrauded and                
need a representative.  An example is an aged grandmother on whose             
behalf one wishes to bring suit.                                               
REPRESENTATIVE CROFT suggested if the phrase "any person " is                  
worrisome to the committee, they could close just the most basic               
loophole of having to be defrauded.  He referred to page 2, lines              
5 and 6, and proposed having two tiers.  To get actual damages, one            
has to have lost money.  To sue to stop someone, though, even after            
refusing to be conned, he suggested substituting for "any person"              
the phrase, "a person who was the intended victim of an act                    
prohibited by 45.50.471 through .561, whether he or she suffered               
actual damage or not, may bring an action ...."  He noted that                 
those are the consumer protection statutes referred to by Daveed               
REPRESENTATIVE PORTER asked whether that would delete (c).                     
REPRESENTATIVE ROKEBERG said it would have to.                                 
Number 0360                                                                    
REPRESENTATIVE JAMES again used the $79 example, where the person              
hasn't paid.  She stated her understanding that after filing a                 
case, the person could stop the perpetrator and then get costs                 
back, plus damages, although there wouldn't be any in that case.               
Any penalties would go to the state.  She said, "So, the only                  
incentive that they would have to do this would be to get their                
fees, in case they happen to already be an attorney and could carry            
their own case, or that they would stop them, and that they're                 
altruistic, because they can't get anything for it but they're                 
going to stop them.  And so I find, in this busy lifetime, not very            
many people willing to do that, unless there is some benefit for               
them.  And I don't see any in here."                                           
CHAIRMAN GREEN said the motive is a different issue.                           
Number 0410                                                                    
REPRESENTATIVE CROFT agreed there would be no benefit to an                    
individual, but with the bill there would be no bar.  A person                 
could do it on the merits, for the right reasons, without being                
Number 0432                                                                    
REPRESENTATIVE CROFT made a motion to adopt Amendment 4, "that we              
take the language I described and that I've written down here in               
the place of 'any person' on page 2, line 5 and 6, and that we                 
delete section (c), which is on page 2, lines 15 and 16, as                    
basically superfluous with that."                                              
Number 0460                                                                    
REPRESENTATIVE ROKEBERG objected for discussion purposes.  He said             
he agrees with the direction of the amendment but wants to know                
whether the standing is only related to this particular section,               
.535, which is private injunctive relief.                                      
REPRESENTATIVE CROFT said yes.                                                 
REPRESENTATIVE ROKEBERG explained that he doesn't entirely agree               
with earlier objections about that, because it is only for                     
injunctive relief, not for a cause of action for damages without               
having standing.  Furthermore, a person requesting injunctive                  
relief would have to prove it.  He said he likes the amendment.                
Number 0506                                                                    
REPRESENTATIVE BERKOWITZ objected to the wording of the proposed               
amendment.  He pointed out that "intended victim" goes to the                  
intent of the perpetrator, rather than the effect on the victim.               
He stated, "Looking at it this way, I have to show that someone                
intended me, personally, to be the victim, rather than me being a              
victim.  And so, for example, if there's an ad placed, and I see an            
ad, and it's not something that targets me, I have no right to                 
bring action.  Or if I'm another business who is lawfully engaged              
in my business and competing fairly, ... I'm not the intended                  
REPRESENTATIVE BERKOWITZ offered a friendly amendment "something               
along the line of someone who is victimized by this action, which              
puts the power in the hands of the person who suffers or who could             
suffer, rather than allowing the course of action to be dictated by            
the wrongdoer."                                                                
Number 0560                                                                    
CHAIRMAN GREEN asked how that would differ, if he were a sham                  
artist presenting it to an audience; he asked whether that audience            
wouldn't be the intended victims.                                              
REPRESENTATIVE BERKOWITZ pointed out that a person could claim to              
be the intended victim, but that the perpetrator could claim                   
otherwise, saying the target was someone else.  It would require               
the victim to prove it.                                                        
Number 0582                                                                    
REPRESENTATIVE CROFT said he would accept a friendly amendment to              
cross out "intended" from the amendment.                                       
REPRESENTATIVE BERKOWITZ responded that he would remove any                    
objection if the friendly amendment is accepted.                               
Number 0618                                                                    
REPRESENTATIVE ROKEBERG spoke to the amendment to the amendment.               
He stated, "Under .531, on the front page here, in Section 2, you              
have the victim, right? ... You have actual standing to bring the              
injunctive relief if you have had damages.  So, what here we're                
talking about it somebody that doesn't have standing under .531,               
REPRESENTATIVE CROFT agreed, adding that AS 45.50.531 says, "an                
ascertainable loss of money or property."                                      
REPRESENTATIVE ROKEBERG said, "So, we're looking for something                 
other than that here."                                                         
REPRESENTATIVE CROFT agreed, adding that it would be a victim                  
without damages.                                                               
REPRESENTATIVE PORTER noted that in this context, it applies                   
whether a person has or hasn't had damages.                                    
Number 0666                                                                    
CHAIRMAN GREEN asked whether there was further discussion of the               
amendment to the amendment.  He then asked whether there was any               
objection.  Hearing none, he announced that "intended" had been                
REPRESENTATIVE ROKEBERG asked that proposed Amendment 4 be                     
Number 0689                                                                    
REPRESENTATIVE CROFT stated, "On page 2, lines 5 and 6, delete 'any            
person' and insert in its place, 'a person who was the victim of an            
act prohibited by 45.50.471 - .561, whether he or she suffered                 
actual damage or not,' and then in addition delete page 2, lines 15            
and 16, as superfluous."                                                       
CHAIRMAN GREEN asked whether there was further discussion of                   
Amendment 4 or any objection.                                                  
Number 0720                                                                    
REPRESENTATIVE ROKEBERG objected, saying it was just for a moment.             
He stated his understanding that under .531, there is a victim with            
damages, whereas there is a victim without damages under the                   
pending amendment.                                                             
REPRESENTATIVE CROFT concurred.                                                
REPRESENTATIVE PORTER commented that it wasn't because the                     
defendant wasn't trying.                                                       
REPRESENTATIVE ROKEBERG said he is thinking there are two different            
categories of victims here.                                                    
CHAIRMAN GREEN added, "Under the same actions."                                
REPRESENTATIVE ROKEBERG specified that his concern is about whether            
the words say that, not about the thrust of the amendment.                     
CHAIRMAN GREEN suggested it just says a victim that didn't suffer              
damages, but it would be under the same action that could have                 
caused damages to a victim.                                                    
REPRESENTATIVE ROKEBERG said he would prefer to see some qualifier,            
suggesting it isn't a "100 percent victim."                                    
Number 0771                                                                    
REPRESENTATIVE PORTER proposed an analogy of robbery and attempted             
REPRESENTATIVE ROKEBERG said he agrees but is asking whether they              
are saying that by this amendment.                                             
CHAIRMAN GREEN replied, "I think so."                                          
Number 0781                                                                    
REPRESENTATIVE ROKEBERG withdrew his objection.                                
Number 0792                                                                    
CHAIRMAN GREEN asked whether there was further objection to                    
Amendment 4 [as amended].  Hearing none, he announced that                     
Amendment 4 was adopted.                                                       
Number 0797                                                                    
REPRESENTATIVE BUNDE directed his comments to Ms. LaBolle, saying              
he certainly doesn't admire scam artists, and he assumes the                   
chamber doesn't either.                                                        
MS. LaBOLLE affirmed that.                                                     
REPRESENTATIVE BUNDE noted that comments were made earlier,                    
however, that this may be a problem because of lack of consumer                
protection attorneys in the state.  He said, "I think the chamber,             
along with the majority of the citizens in the state, have asked               
that we reduce the size of state government.  And short of                     
providing a babysitter for every senior citizen in Alaska, would it            
be fair to say that most victims can't be victimized without some              
degree of their own cooperation?  If you think it's too good to be             
true, in other words ...."                                                     
MS. LaBOLLE acknowledged that adage and mentioned senior citizens              
and the concern of protecting people who can't protect themselves.             
She said she believes that is why there is a judicial system, to               
sort all that out.  She then stated, "I wish we could afford a                 
whole flock of attorneys to take care of the people who need                   
defense, or perhaps the attorneys could start a foundation where               
they pay their own ... attorneys fees or something.  But the point             
is that we just can't have it be at the cost - at the unfair cost -            
to one group, in which this case it would be business people who               
were innocent and ended up having to have a cost weighed against               
them because they were charged.  And you're supposed to be, you                
know, innocent until proven guilty; they are, and they're still                
going to pay. ... That's what our problem is with it.  It's just               
that policy position, as Representative Croft said."                           
Number 0923                                                                    
REPRESENTATIVE ROKEBERG noted that the original bill draft had a               
provision for costs and attorney fees to be awarded to the                     
prevailing plaintiff, and only to the defendant if there was a                 
frivolous lawsuit.  He asked Representative Croft to correct him if            
he misstated it, then added that there were either court rule or               
full fees.  He indicated this section had been changed after review            
by the House Labor and Commerce Committee.  It was an endeavor to              
keep the balance.  The rationale about deviating from Rule 82 was              
that many of these actions would be for relatively small amounts of            
money.  Under Rule 82, a prevailing party winning reimbursement for            
fees wouldn't be enough to even cover the cost of the attorney.                
Therefore, there is no real incentive or coverage, particularly in             
the lower levels in terms of consumer protection.                              
REPRESENTATIVE ROKEBERG stated, "So, we looked at this as an                   
opportunity to jump beyond Rule 82 and have some better equity to              
prevailing parties, ...  particularly businesses who were damaged              
by what would be called frivolous or 'vexatious' lawsuits.  And                
that's what we endeavor to do here, with the idea of giving the                
ability of those people who were harmed to bring a cause of action             
- be compensated for it - but also to protect businesses.  And                 
particularly in the subsection (c) of .537, it's something we                  
created ... when we were talking about multiple fact patterns where            
we could find that a business actually would bring the suit for                
business purposes, really. ... This was intended, there, to offset             
that or stifle that type of a cause of action."                                
REPRESENTATIVE ROKEBERG said to Ms. LaBolle, "You're asking the                
committee to reconsider Rule 82, when we had a different rationale.            
And I wanted to explain what went on in our thinking when we worked            
with the sponsors of the bill and with the committee."  He said                
subsection (b) still troubles him somewhat.  One idea had been to              
have the prevailing party receive fees on a 100 percent basis, not             
under Rule 82.  Representative Rokeberg indicated he wouldn't                  
object to that, but that they had been trying to compromise.                   
Number 1090                                                                    
REPRESENTATIVE JAMES said she'd feel a lot more comfortable if they            
were doing this just for senior citizens or vulnerable people, but             
the bill doesn't specify that.  She then pointed out a language                
error on page 2, lines 9 through 12, which read, "the person first             
provides written to the seller or lessor who engaged in the                    
unlawful act of practice that the person will seek an injunction               
against the seller or lessor unless the seller or lessor fails to              
promptly stop the unlawful act or practice".                                   
Number 1179                                                                    
REPRESENTATIVE CROFT made a motion to delete "fails to" on page 2,             
line 11, and add an "s" after "stop", so that it says, "lessor                 
promptly stops the".                                                           
CHAIRMAN GREEN asked whether there were any objections.  Hearing               
none, he announced that Amendment 5 was adopted.                               
Number 1203                                                                    
REPRESENTATIVE ROKEBERG made a motion to amend page 2, line 26, by             
putting the period after "rate" and deleting "if the action is                 
found to be frivolous".  If the award is to the defendant, then the            
plaintiff has to pay the full cost, he explained.                              
Number 1222                                                                    
REPRESENTATIVE CROFT objected.                                                 
REPRESENTATIVE PORTER suggested it would have to say "if the                   
defendant prevailed."                                                          
REPRESENTATIVE ROKEBERG agreed, saying he would amend the amendment            
Number 1270                                                                    
REPRESENTATIVE CROFT referred to Representative James' discussion.             
He said the reason he keeps saying "small" is that a huge scam may             
or may not be under regular tort law.  These are little injustices             
that are not cost-effective to pursue, for a broken toaster or                 
worthless life insurance policy, or else a person has no power,                
now, to enjoin.  Representative Croft stated, "And I simply want               
that decision made on what you called altruism.  It is the merits              
of the case.  And it is both the sword and the shield here to                  
enforce these laws."                                                           
REPRESENTATIVE JAMES asked whether it could be a class action.                 
Number 1326                                                                    
REPRESENTATIVE ROKEBERG withdrew his amendment, saying he would                
recast it.  He then stated, "On line 26, after the word 'the',                 
delete 'action is found to be frivolous' and insert 'defendant is              
the prevailing party'."  He said that was his intention to begin               
CHAIRMAN GREEN asked whether that was offered as Amendment 6.                  
REPRESENTATIVE ROKEBERG affirmed that.  He explained that it puts              
a burden on the plaintiff to make sure, when bringing suit, that               
there are grounds.  He stated, "Failing that, if you think this is             
too onerous, then we could revert to a Rule 82 over here, or                   
something like that.  But I don't think that the defendants, when              
they're or the prevailing party, should not be compensated, at                 
least in part.  And I think that's what the state chamber's                    
argument is, too."                                                             
Number 1410                                                                    
REPRESENTATIVE BERKOWITZ said as he reads it, nothing would                    
preclude the court, as a matter of equity, from awarding damages or            
attorney costs to a defendant if they prevailed.                               
REPRESENTATIVE PORTER said this prevents it.                                   
REPRESENTATIVE BERKOWITZ responded that this just requires it if it            
is frivolous.  The court can say, "You prevailed but we're not                 
giving you money," or the court can say, "You prevailed and we are             
giving you money."                                                             
REPRESENTATIVE PORTER said this language precludes a prevailing                
defendant from getting any compensation for costs or attorney fees             
unless there is a court determination that the case that was                   
brought against him or her was frivolous.                                      
REPRESENTATIVE BERKOWITZ replied, "I would disagree even if                    
Representative Croft is nodding 'no.'  But it seems to me if that              
were the case, then it would say reasonable rate only if the action            
is found to be frivolous.  That 'only' is not in there."                       
Number 1472                                                                    
REPRESENTATIVE CROFT referred to page 2, lines 21 through 23, and              
said it is "sort of in the conjunctive in (a)."  He noted that the             
prevailing plaintiff would get full reasonable attorneys fees, he              
read from the subsequent language, which says, "and a private                  
plaintiff, who is not the prevailing party, may not be required to             
pay attorney fees or costs to the defendant unless the court                   
determines that the cause of action brought by the plaintiff is                
REPRESENTATIVE BERKOWITZ responded that it is a "may," not a                   
REPRESENTATIVE CROFT said it is a "may not."                                   
REPRESENTATIVE PORTER suggested it is a polite way to say, "No                 
CHAIRMAN GREEN and REPRESENTATIVE JAMES agreed.                                
Number 1523                                                                    
CHAIRMAN GREEN asked whether there was further discussion of                   
Amendment 6 or any objection.                                                  
Number 1541                                                                    
REPRESENTATIVE CROFT renewed his objection.  He said it puts the               
person trying to enforce the consumer protection laws, when that               
person sees a violation and no one else is enforcing it, in a worse            
position than before.  That person could get hit with all of a big             
corporation's attorney fees, for example.  In contrast, under the              
normal law and in the normal situation, a plaintiff could only get             
hit with probably 20 percent.  This would be a discouragement to               
enforcing these laws.                                                          
REPRESENTATIVE ROKEBERG expressed willingness to amend Amendment 6             
by reverting to Rule 82 for subsection (b), if that is the                     
committee's wish.  He said it would be a compromise.                           
REPRESENTATIVE CROFT made a motion to adopt a conceptual amendment             
to Amendment 6, to rewrite subsection (b) so that it has Rule 82.              
"I think we know what we mean by that," he added.                              
MS. LaBOLLE expressed appreciation for that.  "We just want to make            
sure that the law is the same," she said.                                      
Number 1652                                                                    
REPRESENTATIVE PORTER suggested there would have to be a conforming            
amendment to (a).  He said the defendant can't get it if the                   
plaintiff can't pay it.                                                        
CHAIRMAN GREEN agreed.                                                         
Number 1677                                                                    
REPRESENTATIVE CROFT said it would be making (b) read correctly for            
Rule 82, and eliminating everything on lines 21, 22 and 23, after              
"reasonable rate".  He added, "I don't know how the language in (b)            
would read, but I think somebody with a little time could draft                
CHAIRMAN GREEN asked Mr. Jardell whether he had that idea down.                
Number 1710                                                                    
KEVIN JARDELL, Legislative Administrative Assistant to                         
Representative Joe Green, Alaska State Legislature, speaking as                
committee aide, asked whether they were still allowing full                    
reasonable attorney fees for the frivolous actions, but only Rule              
82 fees for prevailing.                                                        
REPRESENTATIVE PORTER said to accomplish the intent of the                     
amendment to (b), they would have to remove the frivolous aspect in            
(a).  He indicated the result would be a return to Civil Rule 82               
for plaintiff and defendant payment of attorney fees.                          
Number 1747                                                                    
REPRESENTATIVE ROKEBERG agreed with that analysis, but with the                
proviso that they further amend the amendment to this section to               
provide that the prevailing party in an action found to be                     
frivolous would get full fees, as a separate section.  In addition,            
he wanted to leave subsection (c) alone.                                       
CHAIRMAN GREEN noted that nobody had talked about (c) yet.                     
Number 1800                                                                    
REPRESENTATIVE ROKEBERG offered to restate that.  He said, "If I'm             
not mistaken, we make subsection (a) and (b) conform to Rule 82;               
have another subsection that would say that the prevailing party,              
if the suit was found to be frivolous, would get full, 100 percent             
recovery; and then leave (c) alone."                                           
Number 1825                                                                    
REPRESENTATIVE CROFT responded that the original amendment changed             
one end of the deal, and the new amendment changes both; by                    
changing both, they are doing nothing with the bill.  He explained,            
"And the way it was originally stated was if the plaintiff does not            
prevail, then Rule 82 applies.  That left, still, the portion that             
said if the plaintiff does prevail, they get full attorneys fees."             
He added, "If you lose, you may be stuck not only with your own but            
with 20 percent of the other's."                                               
REPRESENTATIVE CROFT continued, "Now, as it was just stated here,              
though, it takes away both ends of that, puts it under [Rule] 82,              
even when the plaintiff prevails, does all those things and                    
prevails in enforcing this law.  And if you do that, then you might            
as well delete the entire section, and, I think, except for some               
very minor changes, the entire bill.  So, I would object to the way            
it was originally stated, even.  I think ... you're gutting one                
half of it.  But the way it was most recently stated, you're                   
gutting the entire thing."                                                     
Number 1930                                                                    
REPRESENTATIVE PORTER said, "Speaking to Representative Rokeberg's             
amendment, having stated objection to this general area, the                   
movement that has been made, I think, is commendable.  And I would             
not object to an amendment to this area that basically provided                
what Representative Croft just said:  if, in this case, a plaintiff            
prevailed, under existing rules of determination of prevailing,                
that they be awarded 100 percent; if they do not prevail, that Rule            
82 applies.  But on the other end of the stick, if it is found to              
be frivolous, they get nailed, just as they were rewarded at the               
top end, with attorneys fees."                                                 
REPRESENTATIVE ROKEBERG said he thinks the frivolousness should be             
a two-way street.                                                              
REPRESENTATIVE CROFT said he has no problem with the frivolousness.            
REPRESENTATIVE ROKEBERG asked whether a separate section would be              
easier for drafting.                                                           
REPRESENTATIVE PORTER suggested it is going to require a "rewrite"             
that shouldn't be done at the table.                                           
CHAIRMAN GREEN agreed.                                                         
REPRESENTATIVE PORTER indicated he could even support the bill that            
REPRESENTATIVE ROKEBERG said he thinks it will help a lot.                     
REPRESENTATIVE CROFT suggested they write up the amendment, adding             
that he doesn't know whether or not it is something he could                   
[HB 203 was held over.]                                                        
HB 383 - EXPECTED DEATHS                                                       
Number 2092                                                                    
CHAIRMAN GREEN announced the committee would hear HB 383, "An Act              
relating to expected deaths that occur at home or in a health care             
facility,"  sponsored by Representative Gary Davis.                            
REPRESENTATIVE GARY DAVIS stated that HB 383 clarifies whether a               
peace officer needs to attend or respond when a person who is                  
expected to die passes away in a residence.  Currently, the statute            
is vague and being treated differently by the different law                    
enforcement agencies around the state.  He said that an "expected              
death form" is signed when someone has a terminal illness and is               
expected to pass away at home.  This bill says the police do not               
have to respond to the scene of an expected home death.  It also               
clarifies the state law, but it leaves it up to local law                      
enforcement agencies and municipalities if they desire to have such            
a law.  He pointed out that the bill does allow for situations of              
suspicion if it is felt that the person has died from causes other             
than the illness.                                                              
Number 2328                                                                    
REPRESENTATIVE CON BUNDE moved to adopt the proposed committee                 
substitute for HB 383, dated 4/1/98, as the working draft.                     
Number 2360                                                                    
REPRESENTATIVE DAVIS stated that there was some disagreement on the            
bill between the agency and his office.  The committee substitute              
was drafted at the last minute, and that is why there is not the               
normal heading on the bill.  He stated that his office has checked             
with the Legislative Legal Services on the wording and they have               
made the necessary corrections.                                                
Number 2450                                                                    
CHAIRMAN GREEN asked if there was an objection to the adoption of              
the committee substitute.  Hearing none, he announced that CSHB
383, dated 4/1/98, was before the committee.                                   
TAPE 98-53, SIDE A                                                             
Number 0053                                                                    
MICHAEL PROPST, Medical Examiner, Division of Public Health,                   
Department of Heath and Social Services, stated that he has been               
working with Representative Davis and he is in concurrence with the            
way the bill is currently drafted.  He said he is available to                 
answer any questions the committee may have.                                   
Number 0100                                                                    
REPRESENTATIVE PORTER asked if there is still a requirement to                 
respond to an unattended death without this legislation and is that            
what the bill is trying to correct.                                            
Number 0110                                                                    
DR. PROPST responded that the department is trying to get some                 
statewide consistency and there is currently no law or regulation              
which mandates anything which is causing a series of prevailing                
practices.  In Anchorage, the practice is to send a uniformed                  
officer to the scene of an unattended death, however, other                    
jurisdictions do not send officers to the scene.  He explained that            
the bill lines up the criteria that the person must have a known               
fatal disease and die of that disease.  He stated that the bill                
will make the state's position clear.                                          
Number 0266                                                                    
REPRESENTATIVE PORTER asked if this would affect the provisions                
requiring an autopsy.                                                          
Number 0286                                                                    
DR. PROPST replied that it does not.  He stated that if there was              
anything suspicious about an expected death he would be notified               
and the department would have the jurisdiction to make the                     
appropriate decision.                                                          
Number 0295                                                                    
CHAIRMAN GREEN asked if there is a state form that is required.                
Number 0311                                                                    
DR. PROPST stated that the forms that are in use now are of the                
Comfort One Program, which was passed by the legislature four years            
Number 0324                                                                    
REPRESENTATIVE BUNDE stated that the committee has some testimony              
from a mother who went through a very trying time with the death of            
her son at home regarding the additional stress she had due to how             
the death was investigated.  He asked how often are the unattended             
"naturally caused" deaths a factor in police investigations.                   
Number 0410                                                                    
DR. PROPST replied that it is rare, individual police officers vary            
in their ability and sensitivity in handling these situations.  He             
stated that occasionally there has been a lack of sensitivity in               
the investigating officer, but it is not a frequent situation.                 
Number 0445                                                                    
REPRESENTATIVE ERIC CROFT asked if the practice in Juneau is that              
the police are required to be notified, but they often do not go to            
the home.                                                                      
DR. PROPST replied that is correct, as far as he knew.                         
REPRESENTATIVE CROFT asked if that is under the current law.                   
DR. PROPST replied that there is no current law, that is the                   
current practice.                                                              
Number 0471                                                                    
REPRESENTATIVE CROFT asked if the Anchorage police could modify                
what they do now without this bill.                                            
Number 0479                                                                    
DR. PROPST replied absolutely.                                                 
Number 0500                                                                    
REPRESENTATIVE PORTER stated that probably when the legislature                
adopted the new medical examiner bill they deleted a lot of stuff              
that maybe should have been looked at a little closer.                         
Number 0508                                                                    
DR. PROPST stated that the entire expected home death program was              
acquired from the coroner's office in Anchorage.                               
Number 0525                                                                    
CHRIS STOCKARD, Captain, Department of Public Safety, stated that              
the department does not have a problem with the bill.                          
Number 0544                                                                    
CHAIRMAN GREEN asked if it was true that each jurisdiction handles             
the expected death situation on their own.                                     
Number 0550                                                                    
CAPTAIN STOCKARD replied that is pretty much the case. State                   
troopers are consistent because they try to do things by policy,               
statewide.  He stated that 10 years ago police responded to every              
out of hospital death because the policeman had to be there until              
the coroner gave permission to remove the body.  He stated that is             
what is continued to be done, out of habit.                                    
Number 0634                                                                    
CHAIRMAN GREEN stated that the bill states that there would be an              
expectation for the physician to file a form with the law                      
enforcement agency for that jurisdiction and asked if it would be              
the public safety agency in the bush.                                          
Number 0646                                                                    
CAPTAIN STOCKARD replied that if you are in a city police                      
jurisdiction, it would be with the city of Juneau, if it was in                
Hoonah it would be with the Department of Public Safety.                       
Number 0670                                                                    
CHAIRMAN GREEN asked what about the Village Public Safety Officers             
CAPTAIN STOCKARD said that is a good question.  He thought they                
would opt to have it go to the trooper post that covers that area              
because the record keeping is more formal.                                     
Number 0713                                                                    
REPRESENTATIVE PORTER made a motion to move CSHB 383( ), April 1,              
1998, with individual recommendations and attached zero fiscal                 
CHAIRMAN GREEN asked what the changes are between this version and             
Version B.                                                                     
Number 0766                                                                    
REPRESENTATIVE DAVIS stated that Version B gave the nurses the                 
authority to sign the death certificate, but it was then found out             
that they already had that authority, therefore that was deleted.              
He stated that the version before the committee deletes the duty to            
respond to an expected death from state law.                                   
Number 0841                                                                    
REPRESENTATIVE CROFT asked if Version B had it so someone is not               
required to notify and the current version states "a peace officer             
is not required to respond" and asked if that was the major shift.             
REPRESENTATIVE DAVIS replied that is correct.                                  
Number 0861                                                                    
REPRESENTATIVE CROFT stated that the deaths are still requiring                
notification.  It is just that the peace officers do not have to               
come to the house if they choose not to.                                       
REPRESENTATIVE DAVIS replied that is correct.                                  
REPRESENTATIVE CROFT that under the current state law, there are               
some places where peace officers do not come to the home, such as              
Number 0895                                                                    
REPRESENTATIVE DAVIS replied that they believed they still utilized            
the form, but if it is known that it is a expected death, they may             
not respond.                                                                   
Number 0899                                                                    
REPRESENTATIVE CROFT stated that he thought it was a good idea and             
a good bill, but he is trying to get a clearer idea.  He asked if              
Juneau is not responding now, what effect will this have on the                
current state law.                                                             
REPRESENTATIVE DAVIS replied that it makes it uniform throughout               
the state, and currently it is being handled differently in                    
different areas by different agencies.                                         
DR. PROPST stated that the bill allows local areas to negotiate                
with the police agency for those that have disagreement between how            
the police agency might want to respond and the way those who care             
for the dying would like them respond.                                         
REPRESENTATIVE CROFT stated that they can do that now.                         
DR. PROPST replied that yes, they can.                                         
CHAIRMAN GREEN noted the addition of "medical examiner" and "peace             
officer" in this latest version of the bill.                                   
Number 0966                                                                    
REPRESENTATIVE DAVIS stated that the latest version takes out the              
duty to notify the medical examiner in Section 12.65.007,                      
subsection (a)(4).                                                             
CHAIRMAN GREEN responded that he was referring to (b)(2).                      
Number 0981                                                                    
DR. PROPST stated that the version before the committee should not             
have the medical examiner in the language.                                     
REPRESENTATIVE DAVIS stated that is in (b)(2) regarding suspicious             
or unusual circumstances.                                                      
CHAIRMAN GREEN stated that in (b)(2), "peace officer" was added,               
which was not in the prior version.                                            
Number 1025                                                                    
REPRESENTATIVE PORTER said he wanted to check the statute, and it              
would appear that every kind of a death that is not attended by a              
physician requires notification.                                               
Number 0150                                                                    
DR. PROPST agreed with that.  Basically, this bill would change the            
definition to attended deaths.                                                 
Number 1060                                                                    
REPRESENTATIVE PORTER said he would renew his motion by amending               
the description of the bill to the version dated 4/1/98.                       
CHAIRMAN GREEN asked if there was any objection.  There being none,            
CSHB 383(JUD) passed from the House Standing Judiciary Committee.              
Number 1117                                                                    
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee                
meeting at 2:55 p.m.                                                           

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