Legislature(1997 - 1998)
05/01/1997 01:07 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
May 1, 1997
1:07 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. 31
"An Act relating to civil liability for certain false allegations
or material misstatements of fact in a civil pleading or
proceeding, for certain improper acts relating to signing a civil
pleading, for certain improper acts relating to civil pleadings or
proceedings, for making an intentional false statement of a
material fact, for acting on a civil claim or defense without
probable cause, or for acting for a purpose other than proper
adjudication of a civil claim; amending Rules 13(e) and 82(b),
Alaska Rules of Civil Procedure; and providing for an effective
date."
- HEARD AND HELD
CS FOR SENATE BILL NO. 39(JUD)
"An Act relating to hazardous chemicals, hazardous materials, and
hazardous waste."
- MOVED HCS CSSB 39(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 3(JUD)
"An Act authorizing prosecution and trial in the district court of
municipal curfew violations, and providing for punishment of minors
upon conviction for violation of a curfew ordinance."
- HEARD AND HELD
CS FOR SENATE BILL NO. 70(JUD)
"An Act relating to the discharge of firearms at or in the
direction of buildings and dwellings."
- MOVED HCS CSSB 70(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 199
"An Act relating to the property, transactions, and obligations of
spouses; relating to the augmented estate; amending Rule 301,
Alaska Rules of Evidence; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 31
SHORT TITLE: CIVIL LIABILITY FOR IMPROPER LITIGATION
SPONSOR(S): REPRESENTATIVE(S) MULDER, Cowdery
JRN-DATE JRN-PG ACTION
01/13/97 35 (H) PREFILE RELEASED 1/3/97
01/13/97 35 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 36 (H) L&C, JUDICIARY, FINANCE
02/03/97 (H) L&C AT 3:15 PM CAPITOL 17
02/03/97 (H) MINUTE(L&C)
02/05/97 (H) L&C AT 3:15 PM CAPITOL 17
02/05/97 (H) MINUTE(L&C)
02/05/97 238 (H) L&C RPT 3DP 2NR
02/05/97 238 (H) DP: SANDERS, RYAN, COWDERY
02/05/97 239 (H) NR: BRICE, HUDSON
02/05/97 239 (H) 2 FISCAL NOTES (LAW, COURT)
02/05/97 239 (H) REFERRED TO JUDICIARY
02/05/97 252 (H) COSPONSOR(S): COWDERY
03/10/97 (H) JUD AT 1:00 PM CAPITOL 120
03/10/97 (H) MINUTE(JUD)
03/19/97 (H) JUD AT 1:00 PM CAPITOL 120
03/19/97 (H) MINUTE(JUD)
05/01/97 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 39
SHORT TITLE: HAZARDOUS CHEMICALS, MATERIALS, AND WASTE
SPONSOR(S): SENATOR(S) LEMAN, Kelly, Taylor
JRN-DATE JRN-PG ACTION
01/10/97 25 (S) PREFILE RELEASED 1/10/97
01/13/97 25 (S) READ THE FIRST TIME - REFERRAL(S)
01/13/97 25 (S) RES, JUD, FIN
01/24/97 127 (S) RES REFERRAL WAIVED
02/03/97 (S) JUD AT 1:30 PM BELTZ ROOM 211
02/03/97 (S) MINUTE(JUD)
02/05/97 (S) MINUTE(JUD)
02/06/97 248 (S) JUD RPT CS 4DP 1NR SAME TITLE
02/06/97 249 (S) DP: TAYLOR, PARNELL, MILLER, PEARCE
02/06/97 249 (S) NR: ELLIS
02/06/97 249 (S) FN TO SB (DPS)
02/06/97 249 (S) ZERO FNS TO SB (LAW, DOE, DEC)
02/10/97 267 (S) PREVIOUS FN APPLIES TO CS (DPS)
02/10/97 267 (S) PREVIOUS ZERO FN APPLIES TO CS (LAW)
02/13/97 334 (S) PREVIOUS ZERO FN APPLIES TO CS (DOE)
02/17/97 379 (S) ZERO FISCAL NOTE TO CS (DEC)
02/13/97 339 (S) FIN REFERRAL WAIVED
02/18/97 (S) RLS AT 11:15 AM FAHRENKAMP RM 203
02/18/97 (S) MINUTE(RLS)
02/19/97 412 (S) RULES TO CALENDAR & 1NR 2/19/97
02/19/97 413 (S) READ THE SECOND TIME
02/19/97 413 (S) JUD CS ADOPTED UNAN CONSENT
02/19/97 413 (S) ADVANCED TO THIRD READING
UNAN CONSENT
02/19/97 413 (S) READ THE THIRD TIME CSSB 39(JUD)
02/19/97 415 (S) COSPONSOR(S): KELLY
02/19/97 414 (S) PASSED Y19 N- E1
02/19/97 414 (S) TAYLOR NOTICE OF RECONSIDERATION
02/20/97 431 (S) RECON TAKEN UP - IN THIRD READING
02/20/97 431 (S) COSPONSOR(S): TAYLOR
02/20/97 432 (S) PASSED ON RECONSIDERATION Y17 N- E3
02/20/97 433 (S) TRANSMITTED TO (H)
02/21/97 414 (H) READ THE FIRST TIME - REFERRAL(S)
02/21/97 415 (H) JUDICIARY, FINANCE
04/30/97 (H) JUD AT 1:30 PM CAPITOL 120
04/30/97 (H) MINUTE(JUD)
05/01/97 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 3
SHORT TITLE: MINOR'S CURFEW VIOLATIONS
SPONSOR(S): SENATOR(S) PEARCE, Donley
JRN-DATE JRN-PG ACTION
01/03/97 14 (S) PREFILE RELEASED 1/3/97
01/13/97 14 (S) READ THE FIRST TIME - REFERRAL(S)
01/13/97 14 (S) HES,JUD
02/21/97 (S) HES AT 9:00 AM BUTROVICH ROOM 205
02/21/97 (S) MINUTE(HES)
02/21/97 446 (S) HES RPT 2DP 2NR 1AM
02/21/97 446 (S) DP:WILKEN,WARD;NR:ELLIS,GREEN;
AM:LEMAN
02/21/97 446 (S) FISCAL NOTE (COURT)
02/21/97 446 (S) ZERO FN (DPS)
02/21/97 446 (S) INDETERMINATE FNS (ADM, DHSS)
02/21/97 446 (S) FIN REFERRAL ADDED
FOLLOWING JUDICIARY
03/07/97 (S) JUD AT 1:30 PM BELTZ ROOM 211
03/07/97 (S) MINUTE(JUD)
03/10/97 652 (S) JUD RPT CS 3DP 1NR NEW TITLE
03/10/97 652 (S) DP: PEARCE, MILLER, PARNELL;
NR: ELLIS
03/14/97 739 (S) PREVIOUS INDETERMINATE FN
APPLIES (DHSS)
03/21/97 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/21/97 (S) MINUTE(FIN)
03/21/97 (S) MINUTE(FIN)
03/25/97 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/25/97 (S) MINUTE(FIN)
03/25/97 (S) MINUTE(FIN)
03/25/97 850 (S) FIN RPT 4DP 2NR JUD CS
03/25/97 850 (S) DP: PEARCE, SHARP, PARNELL, TORGERSON
03/25/97 850 (S) NR: PHILLIPS, ADAMS
03/25/97 850 (S) PREVIOUS FN (COURT)
03/25/97 850 (S) PREVIOUS INDETERMINATE FNS
(ADM, DHSS)
03/25/97 850 (S) PREVIOUS ZERO FN (DPS)
04/09/97 (S) RLS AT 11:16 AM FAHRENKAMP RM 203
04/14/97 (S) RLS AT 10:45 AM FAHRENKAMP RM 203
04/14/97 (S) MINUTE(RLS)
04/15/97 1144 (S) RULES TO CALENDAR 4/15/97
04/15/97 1144 (S) READ THE SECOND TIME
04/15/97 1145 (S) JUD CS ADOPTED UNAN CONSENT
04/15/97 1145 (S) ADVANCED TO THIRD READING
UNAN CONSENT
04/15/97 1145 (S) READ THE THIRD TIME CSSB 3(JUD)
04/15/97 1145 (S) PASSED Y15 N2 E3
04/15/97 1145 (S) DUNCAN NOTICE OF RECONSIDERATION
04/16/97 1227 (S) RECONSIDERATION NOT TAKEN UP
04/16/97 1228 (S) TRANSMITTED TO (H)
04/17/97 1131 (H) READ THE FIRST TIME - REFERRAL(S)
04/17/97 1131 (H) JUDICIARY
04/25/97 (H) JUD AT 1:00 PM CAPITOL 120
04/25/97 (H) MINUTE(JUD)
05/01/97 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 70
SHORT TITLE: DISCHARGE OF FIREARMS AT BLDGS.
SPONSOR(S): SENATOR(S) DONLEY, Pearce, Leman, Green, Wilken,
Mackie, Phillips, Ellis, Ward, Duncan, Kelly
JRN-DATE JRN-PG ACTION
01/30/97 176 (S) READ THE FIRST TIME - REFERRAL(S)
01/30/97 176 (S) HES, JUD, FIN
02/17/97 (S) HES AT 9:00 AM BUTROVICH ROOM 205
02/17/97 (S) MINUTE(HES)
02/21/97 (S) HES AT 9:00 AM BUTROVICH ROOM 205
02/21/97 (S) MINUTE(HES)
02/21/97 448 (S) HES RPT 3DP 1NR
02/21/97 448 (S) DP: WILKEN, LEMAN, WARD NR: ELLIS
02/21/97 448 (S) FISCAL NOTE (CORR)
02/21/97 448 (S) INDETERMINATE FNS (ADM, COURT)
02/21/97 448 (S) ZERO FNS (LAW, DPS, HES)
03/24/97 (S) JUD AT 1:30 PM BELTZ ROOM 211
03/24/97 (S) MINUTE(JUD)
03/26/97 (S) MINUTE(JUD)
04/01/97 915 (S) JUD RPT CS 3DP NEW TITLE
04/01/97 915 (S) DP: TAYLOR, MILLER, PEARCE
04/09/97 (S) FIN AT 6:00 PM SENATE FINANCE 532
04/09/97 (S) MINUTE(FIN)
04/09/97 (S) MINUTE(FIN)
04/09/97 1049 (S) FISCAL NOTE TO CS (LAW)
04/10/97 1076 (S) FIN RPT (JUD)CS 6DP 1NR
04/10/97 1076 (S) DP: SHARP, PEARCE, PHILLIPS, PARNELL
04/10/97 1076 (S) DP: TORGERSON, DONLEY; NR: ADAMS
04/10/97 1076 (S) FN TO CS (ADM-PD)
04/10/97 1076 (S) PREVIOUS FN (LAW)
04/10/97 1076 (S) ZERO FNS TO CS (CORR, COURT, ADM-PA)
04/10/97 1076 (S) PREVIOUS ZERO FNS (DPS, DHSS)
04/11/97 (S) RLS AT 10:45 AM FAHRENKAMP RM 203
04/11/97 (S) MINUTE(RLS)
04/14/97 1126 (S) RULES TO CALENDAR 4/14/97
04/14/97 1130 (S) READ THE SECOND TIME
04/14/97 1130 (S) JUD CS ADOPTED UNAN CONSENT
04/14/97 1130 (S) ADVANCED TO THIRD READING
UNAN CONSENT
04/14/97 1130 (S) READ THE THIRD TIME CSSB 70(JUD)
04/14/97 1130 (S) PASSED Y17 N- E3
04/14/97 1130 (S) COSPONSOR(S): PEARCE, LEMAN, GREEN,
04/14/97 1130 (S) WILKEN, MACKIE, PHILLIPS, ELLIS,
04/14/97 1130 (S) WARD, DUNCAN, KELLY
04/14/97 1133 (S) TRANSMITTED TO (H)
04/16/97 1110 (H) READ THE FIRST TIME - REFERRAL(S)
04/16/97 1110 (H) JUDICIARY, FINANCE
04/29/97 (H) JUD AT 1:00 PM CAPITOL 120
04/29/97 (H) MINUTE(JUD)
05/01/97 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
CHARLES E. COLE, Attorney at Law
406 Cushman Street, Suite 2
Fairbanks, Alaska 99701
Telephone: (907) 452-1124
POSITION STATEMENT: Testified in opposition to HB 31.
ANNETTE KREITZER, Legislative Assistant
to Senator Loren Leman
Alaska State Legislature
Capitol Building, Room 113
Juneau, Alaska 99801
Telephone: (907) 465-2095
POSITION STATEMENT: Presented sponsor statement for SB 39.
RITA VENTA, Administrator
Community Right-to-Know Program
Anchorage Fire Department
1301 East 80th Avenue
Anchorage, Alaska 99518
Telephone: (907) 267-4924
POSITION STATEMENT: Testified regarding SB 39.
CRAIG GOODRICH, Director/State Fire Marshal
Division of Fire Prevention
Department of Public Safety
5700 East Tudor Road
Anchorage, Alaska 99507-1225
Telephone: (907) 269-5491
POSITION STATEMENT: Provided department's position and answered
questions regarding SB 39.
MARIE SANSONE, Assistant Attorney General
Natural Resources Section
Civil Division (Juneau)
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Answered questions regarding SB 39.
LARRY DIETRICK, Program Manager
Prevention and Emergency Response Program
Division of Spill Prevention and Response
Department of Environmental Conservation
410 Willoughby Avenue, Suite 105
Juneau, Alaska 99801-1795
Telephone: (907) 465-5275
POSITION STATEMENT: Provided department's position and answered
questions regarding SB 39.
PAMELA LaBOLLE, President
Alaska State Chamber of Commerce
217 2nd Street, Suite 201
Juneau, Alaska 99801
Telephone: (907) 586-2323
POSITION STATEMENT: Testified regarding SB 39.
MYRNA MAYNARD, Legislative Administrative Assistant
to Senator Drue Pearce
Alaska State Legislature
Capitol Building, Room 518
Juneau, Alaska 99801
Telephone: (907) 465-4747
POSITION STATEMENT: Presented sponsor statement for SB 3.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Provided department's position and answered
questions regarding SB 3 and SB 70.
JACK CHENOWETH, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Answered questions regarding SB 3.
MARGOT KNUTH, Assistant Attorney General
Criminal Division
Department of Law
240 Main Street, Suite 700
Juneau, Alaska 99801
Telephone: (907) 465-4652
POSITION STATEMENT: Testified regarding SB 3 on behalf of the
Governor's Children's Cabinet.
JAMES ARMSTRONG, Legislative Assistant
to Senator Dave Donley
Alaska State Legislature
Capitol Building, Room 508
Juneau, Alaska 99801
Telephone: (907) 465-3892
POSITION STATEMENT: Presented sponsor statement for SB 70.
ACTION NARRATIVE
TAPE 97-74, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:07 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter and Rokeberg.
Representative James arrived at 1:09 p.m., and Representatives
Croft and Berkowitz arrived at 1:12 p.m.
HB 31 - CIVIL LIABILITY FOR IMPROPER LITIGATION
CHAIRMAN GREEN announced the first item of business was House Bill
No. 31, "An Act relating to civil liability for certain false
allegations or material misstatements of fact in a civil pleading
or proceeding, for certain improper acts relating to signing a
civil pleading, for certain improper acts relating to civil
pleadings or proceedings, for making an intentional false statement
of a material fact, for acting on a civil claim or defense without
probable cause, or for acting for a purpose other than proper
adjudication of a civil claim; amending Rules 13(e) and 82(b),
Alaska Rules of Civil Procedure; and providing for an effective
date."
CHAIRMAN GREEN informed members that Mr. Cole would discuss his
concerns. Other than that, however, HB 31 would be addressed in
the scheduled order, following SB 39, SB 3 and SB 70.
Number 0107
CHARLES E. COLE, Attorney at Law, testified via teleconference from
Fairbanks, saying he objects to essentially every provision in the
committee substitute for HB 31 (he did not specify which version he
was addressing, but 0-LS0193\H, Ford, 4/29/97 was the most recent).
MR. COLE referred to subsection (1), which says a person may not
sign a civil complaint or other civil pleading that contains false
allegations that are material to the claims asserted in the civil
action with the intention of asserting allegations that are false.
He stated his belief that this will wreak havoc with the judicial
system, and he cited an example. An attorney signs a complaint
alleging the defendant was negligent because he operated a motor
vehicle in violation of the traffic laws. In the course of
litigation, it turns out that the allegation was false. Obviously,
the allegation of negligence is material. At the conclusion of the
case, the prevailing party, in this case the defendant, has the
right under subsection (c) to bring an action against the
plaintiff's attorney for compensatory and punitive damages.
Number 0266
MR. COLE said most assuredly, those claims will be made. The issue
will then turn on whether the party signing the complaint did so
with the intention of asserting false allegations. Mr. Cole
believes it is subjective and will breed litigation. The
prevailing party may easily make the claim against the attorney who
signed the complaint, who will likely respond that he had a
reasonable belief. The issue will be submitted to a jury, and who
knows what the jury may find?
MR. COLE said furthermore, before an attorney signs a complaint,
this provision requires all sorts of protective measures against
possible liability, which will run up the cost of litigation
astronomically for both sides. For example, in the course of daily
litigation, defendants sign pleadings which assert that plaintiffs
failed to state a claim upon which relief may be granted or that
plaintiffs are estopped to make this claim. Hundreds of pleadings
are filed every day in Alaska. Subjecting attorneys to this risk
of compensatory damages, for presumably the entire cost of the
defense of the lawsuit, as well as for punitive damages, takes
litigation in Alaska in the wrong direction.
MR. COLE referred to subsection (2), which says a person may not
"sign a civil pleading before making reasonable inquiry". He said
that was a provision amended in the federal civil rules in 1983;
the amendment provided that in the event of breach of a rule
similar to this, the court shall enter sanctions against the party
signing the complaint who violated the rule. Mr. Cole said that
amendment was objected to by federal judges in the trial courts,
judges in the courts of appeal, lawyers and law professors.
MR. COLE said he had given Representative Cowdery 50 to 100 pages
of law review articles pointing out problems which the federal
courts had with a similar rule; After three or four years,
objections had begun to be raised to that amendment, and in 1993
the rule was drastically revised. Whereas that rule only provided
for sanctions against the offending party, this bill provides under
subsection (c)(2) that compensatory damages may be sought against
the party who signed the pleading. Mr. Cole believes if this is
enacted, virtually every prevailing party will assert damages
against the losing party, breeding more litigation. Attorneys will
fight "like you cannot believe." Bills for those fights will be
paid by clients, increasing exponentially the costs of litigation.
MR. COLE referred to subsection (2)(b), which provides that if the
jury, for example, finds that a party to a civil action has
knowingly made a false statement of a material fact, the court
shall enter judgment against the party making the false statement
on the issue to which the false statement relates.
Number 0630
MR. COLE said there is no definition of a material fact. He had
been involved recently in litigation where many of the 500
"material facts" were represented by documents. In the course of
discovery, witnesses are asked about events for which their memory
may have faded but for which documents bearing their signatures may
exist, refuting the recollection. The question for material facts
is whether a deponent or party who testified made a false statement
knowingly or erroneously.
MR. COLE said the party in whose favor this bill acts will always
claim a statement was knowingly false. Rather than the driving
event being who should prevail under the pleadings of the
allegations of the complaint and the defense, it would turn into a
fight about who knowingly made a false statement. The easy way for
a party to win the lawsuit would be to prove that one of 500
material fact statements was knowingly made false. This would
snarl litigation and collateral issues no end, which happened when
the federal rule was amended in 1983. For the foregoing reasons,
Mr. Cole urged that the bill not be passed out of committee.
Number 0786
CHAIRMAN GREEN advised members that they could ask questions, as
Mr. Cole would not be available later, but there would be no
debate. He noted that there were additional testifiers. He said
there had been a significant amount of work in trying to come up
with this committee substitute. He asked Mr. Cole about his
testimony that in other areas where a similar law was enacted,
there was significant litigation between attorneys.
MR. COLE explained that the federal district courts found that the
collateral issues were essentially corrupting the central issues in
the litigation. Well-documented, it got so bad that the federal
courts substantially amended that rule in 1993. That federal rule
was much softer than this proposed legislation. Mr. Cole felt
confident that were this enacted, the same would result.
CHAIRMAN GREEN asked whether there was a way to ameliorate this, to
help reduce litigation rather than create more.
MR. COLE responded that there is a similar rule, Civil Rule 11 of
the Alaska Rules of Civil Procedure, patterned on federal rule 11.
The Alaska Supreme Court had considered adopting the 1983 amendment
to the federal rules of civil procedure but wisely did not do so.
Mr. Cole believes that the existing rule works well and that trial
judges would agree. To him, the worst thing that can happen in
litigation is when lawyers sue each other and make financial claims
for sanctions and compensatory damages, let alone punitive damages.
He concluded that more civility among lawyers should be brought to
the litigation process, not less.
Number 0970
REPRESENTATIVE JEANNETTE JAMES asked whether Mr. Cole was saying
that he did not believe frivolous lawsuits are currently a problem.
MR. COLE replied that when they took testimony in the Governor's
tort reform committee, they did not hear from trial judges that
they were faced with a substantial number of frivolous lawsuits,
despite questioning them at length about it. Mr. Cole believes
there are plenty of weapons in the civil rules now for trial judges
to deal with lawsuits which they think are frivolous. For example,
they could award full attorney fees or strike pleadings.
Number 1035
REPRESENTATIVE JAMES asked: What about the idea that the judges
don't see this because of frivolous lawsuits settled out of court?
MR. COLE replied that the judges see all of those pleadings. His
position is that parties have the right to settle and pay money for
frivolous lawsuits; however, he does not advise doing so. He does
not believe that many parties, let alone insurance companies, are
"paying the ransom." He concluded, "If they are, we shouldn't be
passing litigation ... to help their improvident judgments."
Number 1079
REPRESENTATIVE ERIC CROFT said part (a) seems to put in statute
what is already in Civil Rule 11, except that in the bill, one sues
in a whole new action afterwards. In contrast, under Civil Rule
11, the claim that an action was frivolous would be made before the
judge most familiar with the lawsuit and evidence. Representative
Croft asked whether the main change in the bill would be throwing
that into a new proceeding, with compensatory and punitive damages.
MR. COLE answered that it gives rise to an entire set of claims.
Under (c)(2), the offending party may be sued for compensatory and
punitive damages. As he recalled the federal rule, there is a
provision whereby if the receiving party to the complaint doesn't
like it or feels there are claims that are frivolous or made
without a basis, they give the other party a notice to that effect.
This provides an opportunity to correct a potential offense without
raising what Mr. Cole believes is a terrible possibility of being
sued for compensatory and punitive damages.
Number 1206
REPRESENTATIVE CON BUNDE said as a layman, he perhaps didn't have
a correct perception of frivolous lawsuits; nevertheless, it was a
concern of his and one reason that he had supported tort reform.
He asked whether Mr. Cole believed the tort reform legislation
recently passed would reduce the amount of frivolous litigation,
thereby removing some of the concerns addressed by this bill.
MR. COLE answered, "I think so." He hadn't seen the final version
of that bill but recalled that there was a provision that a party
could be sanctioned up to $10,000 for filing a frivolous lawsuit.
REPRESENTATIVE BRIAN PORTER said that amount was $50,000.
MR. COLE said at the least, the bill needs more study. It is "far
too draconian" and will disrupt a system of litigation which he
believes, by and large, is working pretty well.
CHAIRMAN GREEN noted the period of silence after the final remark.
He thanked Mr. Cole and concluded that portion of the hearing. (HB
31 was not heard again that day.)
CSSB 39(JUD) - HAZARDOUS CHEMICALS, MATERIALS, AND WASTE
CHAIRMAN GREEN announced the next item of business was CS for
Senate Bill No. 39(JUD), "An Act relating to hazardous chemicals,
hazardous materials, and hazardous waste."
Number 1350
ANNETTE KREITZER, Legislative Assistant to Senator Loren Leman,
came forward to present the bill on behalf of the sponsor. She
stated her intention of going through the bill and then addressing
the question of compressed gasses, which she believed to be the
only pressing issue with this legislation. She advised members
that this bill is similar to SB 69 of the previous year.
MS. KREITZER said Section 1 "speaks to the immunity to Title 9,"
protecting the state from strict liability for oil spills or other
environmental releases at Rural Education Attendance Area (REAA)
schools. Someone from the Department of Law was present to address
sections relating to the liability issue.
MS. KREITZER explained that Sections 2, 3, 7 and 15 delete
reference to the state fire marshal's placarding program. There
are many reporting programs. For example, if the federal
Occupational Safety and Health Administration (OSHA) requires a
material safety data sheet (MSDA), the reporting facility must fill
out a Tier II form. There are also requirements under the
Emergency Planning and Community Right-to-Know Act (EPCRA); the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (CERCLA); the state fire marshal's program under Title
18; and the Title 29 reporting program. For the latter two,
different substances have different reporting thresholds.
MS. KREITZER reported that they had been working on this for three
years, and she had worked with several fire departments:
Anchorage, Mat-Su, Kenai, Kodiak. She had also worked with the
Department of Environmental Conservation (DEC) and the Department
of Military and Veterans Affairs (DMVA) to figure out a way to have
one form for all reporting of hazardous substances. This has meant
some give and take. The Senate had made it clear that they would
like to require no more than the federal government requires. Ms.
Kreitzer noted that there was a proposed committee substitute.
Number 1463
REPRESENTATIVE BUNDE made a motion to adopt 0-LS0214\F, Lauterbach,
4/11/97 as a work draft. There being no objection, that version
was before the committee.
MS. KREITZER referred to page 4, beginning at line 28, through page
5, line 19, which lists the requirements under federal law. In her
most recent conversation with the sponsor and others involved with
this bill, "that's what they would like to stay at." She said the
concern today is that the Anchorage Fire Department would like to
keep compressed gasses as a reporting requirement. They had
discussed this at great length, and Ms. Kreitzer had spoken with
the chief; they now agree to disagree. She had also spoken with
the Alaska Fire Chiefs Association, which doesn't necessarily agree
with the Anchorage Fire Department that compressed gasses need to
be in there, because that would put them back on the road of adding
substances not included on the federal list, and others may want to
add substances in the future.
MS. KREITZER pointed out that one can go to the State Emergency
Response Commission (SERC) and request that compressed gasses be
put on the list statewide, so that the statewide form would include
them and everybody would report them. She said that is the way to
go, rather than amending the bill to include compressed gasses when
that is not a federal reporting requirement.
MS. KREITZER brought to members' attention a couple of other
changes since the previous year's bill. The DEC has received the
Tier II reports ever since the SERC was established. In informal
discussions with the sponsor's office, the DEC has indicated they
do not believe they should have to do that anymore. However, the
sponsor believes it is entirely appropriate that the DEC receive
the Tier II reports on behalf of the state. Therefore, Section 6
specifies that the DEC will receive the Tier II reports on behalf
of the SERC. Ms. Kreitzer noted that it is a federal requirement
that the Tier II reports be filed with the SERC.
MS. KREITZER said throughout the bill, there are deletions of the
fire marshal's placarding program, a Title 18 program under which
only 15 buildings have been placarded since 1986. The program has
not been funded. The state fire marshal or someone from his office
has testified "through February of this year" that they are in
favor of having the program deleted; it is not effective for them,
nor has it been. Ms. Kreitzer advised members that the Title 29
program stays, at the request of the Municipality of Anchorage;
that is the only municipality now reporting hazardous substances
and then putting placards on buildings under Title 29.
Number 1688
CHAIRMAN GREEN understood their not wanting to include compressed
gasses because those are not on the federal list and they are
fearful that in the future, others will be added. He asked: Isn't
it a fact that compressed gasses pose a risk to firefighters?
MS. KREITZER said that has been part of the testimony and is
certainly the position of the Anchorage fire chief, who had a
personal experience with a compressed gas exploding. However,
there are three or four definitions of compressed gas, making it
difficult to amend a bill like this and put "compressed gasses"
back in. "And we decided that it's not something that we wanted to
amend the bill with," she said. They had talked to other fire
chiefs and fire departments, which had not expressed as great a
concern as the Anchorage Fire Department had. That morning, she
had spoken with Tim Biggane, president of the Alaska Fire Chiefs
Association, and they are not necessarily in favor of putting
compressed gasses back on the list; neither is the University of
Alaska Fairbanks.
Number 1747
CHAIRMAN GREEN, noting Ms. Kreitzer's testimony that the DEC would
be the repository for the reports, asked who the emergency response
team is and whether it is the DMVA.
MS. KREITZER replied that it is co-chaired by the DMVA and the DEC.
While SB 33, a bill that passed a couple of years ago, put primary
responsibility for the SERC under the DMVA, it is co-chaired by
both departments. She believes there are seven public members and
nine state departments represented on the SERC. The Tier II
reports must go somewhere, and because the DEC is the hazardous
substance "spill responder" for the state, it makes sense that the
Tier II reports go to them, for their use.
CHAIRMAN GREEN asked whether Ms. Kreitzer knew the DEC's objection.
MS. KREITZER said no.
Number 1804
REPRESENTATIVE CROFT referred to Section 1, excluding the state or
REAAs from strict liability for releasing toxic substances. He
asked whether other entities are strictly liable for that.
MS. KREITZER deferred to the Department of Law for an answer.
REPRESENTATIVE CROFT requested the rationale for deleting the
placarding program, noting that there was a letter from the
Interior Fire Chiefs Association of Alaska objecting to that.
MS. KREITZER replied, "Our rationale for doing it is three years of
working with fire departments and ... the state fire marshal's
office, and the state fire marshal's agreeing to the fact that we
need to delete the program because it has never been funded. ...
When you count the years from '86 to now, 15 buildings being
placarded is not a very effective program."
CHAIRMAN GREEN asked whether the reason, then, was because it was
never funded.
MS. KREITZER answered that it was never funded and they just don't
have the ability to placard every building in the state outside the
Municipality of Anchorage, which is what their responsibility would
be, or is currently, under law.
Number 1870
REPRESENTATIVE ETHAN BERKOWITZ requested clarification about page
4, saying it seemed that beginning on line 4, a municipality can't
add chemicals, but on line 18 and 19, a municipality can remove
chemicals from the lists.
MS. KREITZER explained that they can do both but must go through a
public process. They have to use the form. She explained that the
form which the Municipality of Anchorage is using under the Title
29 program is "very close if not the form that's going to be
approved, because we've worked on this for the last three years,
and they know it's coming, and they agree with many of the changes
other than the compressed gas." She said they can go to the SERC
and either add or delete substances.
MS. KREITZER said maybe it is unclear because of the way the bill
is written. For those sections, beginning on line 9, when she had
asked the drafter whether it was clear that they will use a Tier II
form, the reply had been, "Well, we've not put anything in here
that prohibits them from using another form." Ms. Kreitzer stated,
"And so, that's what this says. ... They can't use a form other
than the one required under here. They can't require someone to
report unless they're required to report by the State Emergency
Response Commission, which means federal law. And they can't
require reporting of a substance that's not under this, unless it's
added by the commission, under (c)."
Number 1945
REPRESENTATIVE BERKOWITZ agreed there was some confusion in the
drafting. The way he read it, a municipality can remove substances
separately from the SERC, but it requires prior approval by the
SERC before adding any. He expressed concern that the state may be
superimposing its will on municipalities, precluding a municipality
from exercising its own judgment as to what chemicals, materials
and wastes should or should not come within its reach.
MS. KREITZER said that was exactly an issue they debated in talking
to fire departments in Kenai, Kodiak, Mat-Su and Anchorage. The
bigger problem has been that this system does not work and the fire
departments cannot even handle the information coming in to them.
Ms. Kreitzer stated, "ARCO Houston sends a packet this thick to the
Anchorage Fire Department, listing every can of WD-40 because of
all of the different reporting requirements that are here." She
restated that this has been a bill of give and take, saying they
must get to some compromise, to make it a workable program so that
fire departments can at least use the information.
Number 2005
REPRESENTATIVE BERKOWITZ said it seemed that if Anchorage or Kenai
didn't want all that information about each can of WD-40, they
could, independently from the state, say so.
MS. KREITZER replied that she had been in meetings for three years
and had talked to ARCO and the fire departments; it was not that
easy. She stated, "They have their system set up for reporting,
their computer systems, and they're trying to do it in the most
cost-efficient manner possible. ... That's what has brought us to
the place where we are now, and that's why the bill is written the
way that it is, to help satisfy everybody's needs."
REPRESENTATIVE BERKOWITZ asked whether the bill was being driven by
concerns of ARCO and other companies, rather than municipalities.
MS. KREITZER said no, their main concern has been that fire
departments be able to use the information for the purpose that it
was intended, for good response and to protect firefighters.
Number 2059
REPRESENTATIVE CROFT asked whether they were deleting the
placarding program because it does not make sense, because it is
not cost-effective, or because it is a good program that is not
being funded.
MS. KREITZER replied, "People may argue whether it's a good program
or not. The firefighters and the fire chiefs that I've talked to
have found it to be ineffective."
REPRESENTATIVE CROFT asked, "Ineffective because the placards
aren't there, because we don't give them the money to do it? Or
ineffective because when the placards are, it doesn't help them
that much?"
MS. KREITZER replied, "I think probably for a multitude of
reasons."
Number 2120
RITA VENTA, Administrator, Community Right-to-Know (CRTK) Program,
Anchorage Fire Department, testified via teleconference, speaking
on behalf of Inspector Foster, who was unavailable; they had been
asked by Fire Chief Mike Nolan to express their department's
concerns regarding this change on the compressed gas issue.
MS. VENTA referred to page 5, lines 18 and 19, indicating it
related to AS 29.35.500, section (c)(7), and changed the reportable
quantities of compressed gasses from 200 cubic feet to 10,000
pounds. For Anchorage, a change like that would create two major
safety issues: Compressed gasses, even in small quantities, can be
lethal, especially to firefighters; and identifying a gas and its
particular risk may not be feasible until the middle of an
emergency. Prior knowledge through proper reporting is the only
reasonable approach.
MS. VENTA stated, "We acknowledge that within the Anchorage fire
service area, our CRTK Program retains enforcement of the
compressed gasses, as presently written. However, not all of the
municipality is encompassed by the Anchorage fire service area.
Eagle River, Chugiak and Girdwood are covered by our emergency
responders but excluded from municipal code enforcement. And this
is a disparity, then, between two reportable quantities for
compressed gasses, which would increase the hazards to our
personnel and the public."
MS. VENTA said second, strict conformance to federal regulations
may not always be best for Alaska, given the distances in outlying
areas between settlements, the availability of an emergency
responder network and severe weather. A typical remote Western
Alaska village may be centered around a fish processing industry,
for example, that uses (indisc.), ammonia and chlorine in
quantities that are relatively large but well below the proposed
10,000-pound reporting limit.
MS. VENTA said rural communities depend on these regulations to
address emergency planning; with the proposed changes, regulations
would offer no relevant guidance. Failure to assess and report
compressed gasses could lead to disaster for citizens with rural
fire departments, many of which operate with minimal resources.
The Anchorage Fire Department urges the committee to amend the
draft and retain the "200 cubic feet" language.
MS. VENTA commended the bill's authors for permitting amendments
that try to streamline reporting for industry while improving
safety for responders, workers and the public. She advised members
that Anchorage's program had operated since 1986. Hundreds of
buildings are placarded there, and the program works for them. As
for trying to have a unified form, she said, "We don't have a
problem with that. But we have our own program set up. We'd like
to continue operating it that way."
Number 2272
CHAIRMAN GREEN referred to the expressed concern that deviating
from the federal list may result in a variety of things that are
not really necessary or a mixed bag. He asked: "Do you feel that
the restrictions that are on page 6, I believe, the requirements to
add or subtract, would be adequate if, in fact, gasses were re-
added, as an addition to the federal requirements, but still would
not open the door to just a plethora of things being added back
in?"
MS. VENTA replied, "I think we're okay ... with that premise. We
just feel that the gas issue is an important issue for our first
responders. Most of the other substances, as listed here, are
pretty much in coordination with what we require."
Number 2317
REPRESENTATIVE PORTER asked what size of canister was being
eliminated by deleting compressed gas equal to 200 cubic feet.
MS. VENTA replied, "Generally, 150-pound cylinders; those are the
big ones."
REPRESENTATIVE PORTER asked, "Notwithstanding the fire service
district, currently you're placarding the entire city because of
Title 29?"
MS. VENTA answered, "Yes, that's correct. Within certain
quantities, if they have what we consider hazardous materials, we
placard their building. ... And the first responders find the
placarding very helpful here."
REPRESENTATIVE PORTER asked whether the assembly would be
precluded, because of the service district boundaries, from passing
an areawide ordinance covering this or any other provision.
MS. VENTA requested clarification.
REPRESENTATIVE PORTER said he understood there was an inability
because of the fire service districts there to have a uniform
zoning regulation throughout the entire city; consequently, they
must rely on Title 29, which is a statewide program. He asked,
"Are you precluded from having an ordinance that would, in effect,
replicate your abilities in Title 29?"
MS. VENTA said she would have to check on that.
Number 2391
REPRESENTATIVE BERKOWITZ asked, "Do you often respond, or do you
ever respond, outside the district?"
MS. VENTA replied, "We certainly do. We've got a station in Eagle
River, and we are second-in on Chugiak. And we also have a monitor
station in Girdwood, but we do respond there."
REPRESENTATIVE BERKOWITZ said his concern would be that the
placarding would have to occur wherever they might respond.
MS. VENTA said that is correct.
Number 2419
CRAIG GOODRICH, Director/State Fire Marshal, Division of Fire
Prevention, Department of Public Safety, testified via
teleconference from Anchorage, saying the position of the office of
the state fire marshal had been adequately articulated and he would
answer questions.
Number 2437
REPRESENTATIVE PORTER asked whether the municipality could initiate
an areawide ordinance to address needs being excluded at this
level.
MR. GOODRICH stated his understanding that the municipality is
looking toward taking a complete deferral with respect to building
and life-safety codes for the entire municipality. He commented,
"That will take a similar ballot, however, just to pass it on the
`hillside,' with law enforcement taking over that section. So, how
that will be received is up in the air."
MR. GOODRICH continued, "But the short answer to your question is
I don't believe that that is possible for the same reasons that the
law enforcement issue took place on the `hillside'; extending fire
service out to the full edges of the municipality seems to be
problematic. However, I would think that that would probably be
something as well addressed in the legal department. So, I can't
answer that question directly, but that's my opinion."
TAPE 97-74, SIDE B
Number 0023
MARIE SANSONE, Assistant Attorney General, Natural Resources
Section, Civil Division (Juneau), Department of Law, said she
wasn't prepared to answer a question about municipal jurisdiction
but could look into it.
REPRESENTATIVE PORTER suggested it would require a city attorney's
response.
Number 0036
REPRESENTATIVE CROFT noted that they are exempting the state and
REAAs from strict liability for release of hazardous substances.
However, in looking at the statute, it seemed that for strict
liability, there are many exceptions, so that it is a "sort of
modified strict liability." He asked whether other private
individuals, then, are still liable.
MS. SANSONE said that is accurate. The strict liability statute
begins with a presumption that everyone is strictly liable not only
for clean-up costs and remediation, but also for damages. This
limitation on liability is for the REAA schools and the state in
that context. It limits strict liability but not the state's
liability for damages if the state were at fault, were negligent,
or took some intentional or reckless action that resulted in the
damage. Ms. Sansone noted that AS 46.03.822 contains mechanisms by
which parties may seek contribution or seek to shift that strict
liability to another party if they believe they can apportion fault
or if they were innocent purchasers.
Number 0112
REPRESENTATIVE CROFT asked, "So, a municipal school district, a
municipal school building, after this law, would still be under the
provision, but REAAs wouldn't? We're making a distinction between
the schools we run and the schools ... everyone else runs?"
MS. SANSONE said that is correct. This provision in the bill
resulted from a settlement of the Toksook Bay litigation, and it
was part of the agreement that the parties arrived at in order to
obtain the funding for that settlement. She believed it was
arrived at through the Senate Finance Committee.
Number 0139
REPRESENTATIVE BERKOWITZ said he was curious to know more about the
origins of this particular provision, adding that "clearly, it's
not part of a settlement provision, as it seems a little unusual
for us to exempt ourselves and still hold everyone else to a
different standard."
MS. SANSONE said she recalled when this was discussed in the Senate
Finance Committee. It was at the request of the DEC, the
Department of Education and the Department of Law. The Senate
Finance Committee agreed with their recommendation and asked that
it be appended to this bill. "And we've just carried it over once
again," she added.
Number 0167
REPRESENTATIVE BERKOWITZ said he could understand why the state
would want to exempt itself from liability, but he did not
necessarily think that was always the prudent course to follow.
REPRESENTATIVE CROFT stated a conflict: The law firm he had been
associated with had represented the Lower Kuskokwim School District
in that Toksook Bay litigation at the time. However, he had no
continuing financial relationship with them.
CHAIRMAN GREEN expressed appreciation for the disclosure.
Number 0202
LARRY DIETRICK, Program Manager, Prevention and Emergency Response
Program, Division of Spill Prevention and Response, Department of
Environmental Conservation (DEC), came forward to answer questions.
He stated, "We reviewed the language in the proposed amendments,
and we acknowledged and concurred with the changes made in the
committee substitute on the Senate side." He said the Tier II
reporting requirements are federal, not state, requirements.
MR. DIETRICK explained, "The amendments made in the committee
substitute were to make it clear that the reporting was to occur at
the local level, with the municipalities and with the State
Emergency Response Commission. And the nature of those amendments
were [sic] to ensure that we didn't create another program in our
agency to oversee or inject other reporting requirements in. And
we do agree with those changes that were made in the committee
substitute. And there is a letter from the director of the
Division of Spill Prevention and Response, which I believe should
be in your packets, acknowledging this." He said he had copies of
that letter, noting that it was dated February 24.
CHAIRMAN GREEN requested a copy, then asked, "And this in essence
says what you said, that the DEC has no problem, then, in being the
repository for these forms?"
Number 0289
MR. DIETRICK restated that they agree with those amendments that
were made. He noted that SB 33 had transferred SERC staff
responsibilities from the DEC to the DMVA. He emphasized that the
reporting requirements being discussed relate to information that
must be reported by the facility or business to the local fire
department, to the local emergency planning committee, and to the
SERC. It is not required to be reported to the DEC, and they
didn't want to get into that role.
MR. DIETRICK stated, "Beyond that, we have, for the SERC - when we
were originally staffing the SERC - received those reports. And
what we actually do with that information - this is information
about the chemicals that are being stored - we update a baseline
report that was prepared in 1994 that maps all of the hazardous
substances in the state, where they are stored. So, we use this
information that's reported to update what we call a `hazards
analysis,' so we can locate where the ammonia, chlorine and other
substances are. And that's how that information is used."
MR. DIETRICK said beyond that, the information is used at the local
level for the responders; he believes that should probably continue
to be its primary purpose. That is why the DEC believes the
determination of threshold levels for reporting is appropriately
placed at that level. He stated, "We don't object to continuing in
that role of receiving the reports and updating the state `hazards
analysis.' And since the proposed amendments under consideration
today place management of the other aspects with the SERC and the
municipalities, yeah, we do not object, and we will continue to
receive those reports and update the analysis."
Number 0370
CHAIRMAN GREEN indicated that for areas like Anchorage, the report
would be with the DEC but the municipality may respond out of its
jurisdiction, for example. He asked whether there was any problem
with the DEC providing that material to those likely to respond.
MR. DIETRICK said the federal requirement is that those three
entities identified get the report; in theory, local fire
departments should already be receiving the reports, as should the
local emergency planning committee and the SERC. The DEC has
simply been the receiving agent for the SERC and does nothing
further unless there is a request from a municipality, for example.
CHAIRMAN GREEN asked whether an area beyond the municipality where
it has a firefighting system would also have access to the
information.
MR. DIETRICK said yes.
Number 0424
PAMELA LaBOLLE, President, Alaska State Chamber of Commerce, came
forward to testify, saying what the chamber likes about this
legislation is that it is user-friendly. Too often, government
requests information from businesses without giving much thought to
how it will be used. She had recently heard that under the
"welfare-to-work" program, the Department of Health and Services
was looking at reducing a 33-page form to a single page. She
suggested that such forms can grow over time, with increasingly
more things required than should be.
MS. LaBOLLE stated her understanding that four different forms are
now required, to four entities, which this bill would reduce to one
form reported to three agencies. Availability of information
necessary to protect the "response people" must be the goal. To
her understanding of this legislation, it answers that need, with
perhaps some tweaking, from testimony she had heard.
Number 0506
REPRESENTATIVE CROFT asked whether the chamber has taken a position
on placarding or on the state's "letting itself off on the release
of chemicals."
MS. LaBOLLE said they hadn't looked at those. Although generally
the chamber believes the state ought to be responsible for
everything for which it asks others to be responsible, she could
not speak to this particular issue and did not know the specifics.
CHAIRMAN GREEN asked whether the concern about compressed gasses
had been an issue in internal discussions.
MS. LaBOLLE said they had not discussed it. Although the chamber's
interests may seem simplistic, it is important to them that the
requirements are being reduced and that more succinct information
is being provided to the right people, creating less of a problem
for business. "It sounds like a good deal," she added.
CHAIRMAN GREEN commented that "reduction and uniformity" certainly
sounds like the right idea, if it is complete.
MS. LaBOLLE concurred.
CHAIRMAN GREEN asked whether there were further questions,
indicating that everyone who had signed up to testify had done so.
Number 0577
REPRESENTATIVE BERKOWITZ said he didn't see a fiscal note for the
SERC, which he understood would have a great deal of additional
responsibility on account of this legislation.
MS. KREITZER said there is no fiscal impact on the SERC. It isn't
an entity unto itself; whatever expenses are incurred by the SERC
are in the operating budget for the DMVA and the DEC.
REPRESENTATIVE BUNDE made a motion to move HCS CSSB 39(JUD) from
the committee with individual recommendations and attached fiscal
notes.
REPRESENTATIVE CROFT and REPRESENTATIVE BERKOWITZ objected.
REPRESENTATIVE CROFT explained that he liked the bill as he
understood it started out, and it accomplishes that portion well:
getting the affected groups together, simplifying it, coordinating
it, and making one form that includes only what needs to be
reported. However, he does not like the state immunizing itself
for things that it requires others to do. Although the statute
being amended says "strict liability," it strikes an appropriate
balance between liability for something spilled in the operation of
a business and being able to show that a third party did it or that
"you just took over this property and didn't know there was a tank
there." He called it "a sort of strict liability with a pretty
heavy caveat."
REPRESENTATIVE CROFT said although he understood the need for
uniformity, he didn't know why they shouldn't continue to require
the compressed amounts that he understood the Interior Fire Chiefs
Association of Alaska needed. That association also believes
placarding is a good safety device. He concluded, "So, the core is
not only unobjectionable but seems the right approach. The other
things that are in addition to that, I object to."
CHAIRMAN GREEN said he certainly shared that concern about the
compressed gasses.
Number 0754
REPRESENTATIVE PORTER said the state recognizes that it has been
the victim of the "deep pocket" theory for many years. "And when
you have their culpability to a strict liability standard, they're
dead meat, and that's what they're trying to avoid," he stated.
REPRESENTATIVE BERKOWITZ said notwithstanding that, it seemed
preferable to show that the state would not be treated differently
from anyone else. He offered Amendment 1, to delete Section 1.
REPRESENTATIVE BUNDE objected because there was a motion on the
table. He offered to withdraw his own motion.
CHAIRMAN GREEN concurred, saying he had a concern regarding
compressed gasses.
REPRESENTATIVE BUNDE withdrew his motion to move the bill.
REPRESENTATIVE BERKOWITZ renewed his offer of Amendment 1, saying
he would subsequently address compressed gasses.
CHAIRMAN GREEN noted that Amendment 1 would eliminate Section 1.
REPRESENTATIVE JAMES said she had no problem with that. On the
compressed gas issue, she had no documents in her packet from the
Interior firefighters association. She had also expected Tim
Biggane to be on teleconference; he is her neighbor and friend, and
she was under the impression that the Alaska Fire Chiefs
Association was happy with this.
CHAIRMAN GREEN asked whether there was further discussion about
eliminating Section 1, then asked whether an objection was
maintained.
REPRESENTATIVE PORTER said yes.
CHAIRMAN GREEN requested a roll call vote. Voting to adopt
Amendment 1 were Representatives Croft and Berkowitz. Voting
against it were Representatives Bunde, Porter, James and Green.
Representative Rokeberg was absent. Therefore, Amendment 1 failed,
4 to 2.
CHAIRMAN GREEN offered Amendment 2, "on page 5, that we reinstate
lines 18 and 19."
Number 0922
REPRESENTATIVE JAMES stated her understanding that only Anchorage
was concerned about it and that as a municipality, they have other
options. Mentioning the "hillside" situation, she asked: If they
couldn't get it passed within their own municipality, why would
they want the state to do it for them? She said if the rest of the
state is comfortable with not having it there, it seemed that
Anchorage should be able to solve the problem within its bounds.
CHAIRMAN GREEN stated, "What I think they said was ... that they
couldn't pass anything that would require this outside of their
regular jurisdiction, just like they had the problem with the
police in the `hillside area.' They had excluded themselves on
`hillside' from the municipality, and so, they couldn't force
police protection up there. That's what they're saying, and the
same thing with this fire code: If they were to pass something
like this, putting the gasses back in for Anchorage, and had to
answer in Eagle River or somewhere else, they wouldn't know in
Eagle River whether there were compressed gasses, because their
jurisdiction didn't cover that."
REPRESENTATIVE JAMES said she thought they had done that to the
hillside area by a vote. She asked, "And isn't that still the
option on this?"
There were comments about how controversial that was.
MS. KREITZER said she had spoken to Tim Biggane, who represents the
Alaska Fire Chiefs Association, and his preference was to not put
back in compressed gasses. She had also spoken to Mike Oden
(Safety Training Officer for the Risk Management Department of the
University of Alaska Fairbanks), who is active in "fire politics"
throughout the state and talks with other fire chiefs. She stated,
"And his response to me was, the problem with ... putting this
amendment in is the size of the cylinder. The 150-pound cylinders,
he felt, you get into every welding cylinder. If you are intent on
putting the compressed gas back in the bill, his suggestion would
be ... that the reporting requirement be greater than a 1,000-pound
cylinder."
MS. KREITZER pointed out that the Anchorage Fire Department opposes
the change regarding compressed gasses. In addition, the Interior
Fire Chiefs Association of Alaska had been asked by someone else to
submit a letter saying they oppose deletion of the placarding
program in Title 18. To her knowledge, they are the only
opposition to this bill.
REPRESENTATIVE CROFT said he appreciated the correction.
Number 1077
REPRESENTATIVE PORTER asked whether they would want the 200 amended
to 1,000.
MS. KREITZER said the bottom line, if it was amended, would be a
reporting requirement of greater than a 1,000-pound cylinder.
CHAIRMAN GREEN said he had no problem with a friendly amendment.
REPRESENTATIVE BUNDE said, "So moved."
CHAIRMAN GREEN noted the motion to amend Amendment 2, "to put in
1,000 instead of 200." He asked Ms. Venta what size tank 1,000
cubic feet under compression at standard conditions would be.
MS. VENTA said there was no simple answer because everything is
different. She suggested that Craig Goodrich answer.
CHAIRMAN GREEN specified that when he'd said it was a friendly
amendment, he was talking about changing 200 cubic feet to 1,000
cubic feet, not to 1,000 pounds.
Number 1163
REPRESENTATIVE PORTER said when first referenced as a compromise,
it was 1,000 pounds.
CHAIRMAN GREEN indicated that was their compromise, not his. He
noted that a 1,000-pound tank is huge.
MS. VENTA pointed out that 1,000 pounds of compressed gasses could
require many, many cylinders. A cylinder might weigh 150 pounds,
but the actual compressed gas inside might be only 40 pounds. They
could be talking about a huge number of cylinders, which to her
creates a greater hazard.
CHAIRMAN GREEN asked Ms. Venta's opinion on whether they should
talk about weight of tanks and liquids, compressed gas, or the
amount of gas that is compressed which is capable of doing damage.
MS. VENTA replied, "Well, I think where we are with cubic feet is
fine. I think we can work with cubic feet."
An unidentified speaker asked: How many?
CHAIRMAN GREEN noted that it was Representative Bunde's amendment.
REPRESENTATIVE BUNDE agreed but said he had been referring to 1,000
pounds.
CHAIRMAN GREEN apologized.
MS. KREITZER said she didn't want to add to the confusion, but if
they wanted to amend the bill to the way it was previously,
"compressed gasses equal to or more than 200 cubic feet at standard
temperature and pressure," she would continue to work with the fire
chiefs to find out whether that is the appropriate amount. She
stated her preference for doing it in the next committee.
CHAIRMAN GREEN responded that he'd prefer that it be 1,000, to do
away with the individual cylinder in the back of somebody's garage,
which would be almost unworkable. He said a compression of 1,000
cubic feet in standard conditions is a bigger tank, certainly.
"And if somebody wants that in weight, rather than cubic feet
compressed, I have no objection to that, but I would rather have
the 1,000 than the 200," he concluded.
Number 1270
REPRESENTATIVE BUNDE expressed reluctance to specify a size that he
didn't have a better handle on, but he wanted to increase the 200.
He asked whether they needed additional expertise.
REPRESENTATIVE JAMES said she did not feel comfortable because they
didn't seem to have the right information. She asked whether there
was another committee of referral.
MS. KREITZER replied that there was a House Finance Committee
referral. She offered to work with that committee to rectify this
issue, if so directed by the current committee.
REPRESENTATIVE JAMES said she would like to ask Tim Biggane to
testify or provide information, as she trusted his judgment.
CHAIRMAN GREEN stated his preference for working on it in the
current committee. He noted that on the table was "an amended line
18 and 19" to reinstate the language, "compressed gasses equal to
or more than 1,000 cubic feet at standard temperature and
pressures". He asked whether there was a continued objection.
REPRESENTATIVE JAMES said yes.
REPRESENTATIVE BUNDE said he supported the increase but was not
comfortable because he did not know how much 1,000 cubic feet was
in practical terms. For example, does this size of container
exist? Are they putting in a prohibition that if they had said 800
or 1,100 would have fallen within some industry standard?
REPRESENTATIVE PORTER commented, "If there is a direct correlation
between the 200 and the 150-pound tank, then 1,000 would be a 750-
pound tank." However, he did not know whether that was the
appropriate size.
CHAIRMAN GREEN suggested the increase to 1,000 would do away with
the individual welding shop, for example.
REPRESENTATIVE BUNDE said he assumed the sponsor would try to "put
a finer point on this," which would remove his concern.
CHAIRMAN GREEN asked Craig Goodrich whether he could get them out
of this dilemma.
Number 1446
MR. GOODRICH replied, "Not easily, Mr. Chairman. The problem is
that the gas is compressed into different size of cylinders. It
depends on if you're talking about fluorine, LNG, LPG; there's a
whole host of things. The cylinder sizes are not standardized, and
neither is the weight. ... If the interest is to have something
larger than two or three cylinders in the back of a garage, then I
think that the problem is going to become a little bit broader, in
that the specific quantities for specific kinds of compressed
gasses are going to have to be identified."
MR. GOODRICH suggested they may have to talk to the various
industries if they want amounts around 1,000 pounds. It would vary
from 750 pounds to a one-ton cylinder, for example, for fluorine;
the latter is as big as a conference table and is a considerable
amount of compressed gas. It would be substantially different for
other kinds of gasses, however, and it would require research.
CHAIRMAN GREEN asked whether "the 1,000" would remove it from the
individual garage.
MR. GOODRICH replied, "Unquestionably."
CHAIRMAN GREEN said that was what they were after.
MS. VENTA pointed out that Anchorage is looking at commercial
businesses, as residential use is not regulated.
Number 1540
CHAIRMAN GREEN mentioned that it has been in statute for some time
at 200 cubic feet, without all this controversy. He asked whether,
by increasing it to 1,000, they had definitely removed it from the
back yard and now were talking about something that posed a
significant risk in a commercial building to a firefighter.
MS. VENTA replied, "I would absolutely say so, yes."
CHAIRMAN GREEN asked whether there was further discussion about
Amendment 2, including 1,000 cubic feet.
REPRESENTATIVE JAMES removed her objection but said she was still
not comfortable with it. Noting that there was another committee
of referral, she said she could talk to them if necessary and would
talk to Mr. Biggane meanwhile.
CHAIRMAN GREEN announced that there being no objection, Amendment
2 was adopted.
Number 1637
REPRESENTATIVE BERKOWITZ offered a conceptual amendment, saying he
would like to restore the placarding program in Sections 2, 3 and
8. He said it doesn't cost anything, it doesn't hurt anybody, and
testimony indicated the firefighters appreciate it.
REPRESENTATIVE BUNDE objected, suggesting the legislature did not
plan to fund this and he would not encourage it. He suggested if
Anchorage, Eagle River or North Pole want to have placarding,
nothing prevents that. He added, "I'm afraid if we say the state
must, then we've got a good excuse for state fire marshal employees
to travel to the far corners of the state to put up a three-by-five
placard during fishing season."
REPRESENTATIVE BERKOWITZ replied that he didn't share the latter
concern. This seemed to be an instance where statewide uniformity
is desired. Because firefighters respond statewide, there
shouldn't be different symbols in different parts of the state.
MS. KREITZER said the problem is that the state fire marshal's
program isn't uniform with Title 29 or with the federal reporting
requirements. The testimony from the state department itself is to
get rid of the program, and the state fire marshal doesn't want it.
REPRESENTATIVE BERKOWITZ responded, "That's not what I heard."
MS. KREITZER said she had minutes from previous meetings and
Representative Berkowitz could ask him on the record again.
CHAIRMAN GREEN asked whether Mr. Goodrich had heard the dialogue.
Number 1781
MR. GOODRICH replied, "The position of the state fire marshal's
office is that this program requires a rather substantial up-front,
meaning front-loaded, expenditure in order to get the program up
and running. Anchorage's program may or may not be carrying
itself, but it is at a state at this point that it is near-self-
sustaining."
MR. GOODRICH continued, "The big issue, however, was the up-front
expenditure, meaning to the tune of a million dollars or more in
man-hours and time, in order to get the program logged in, because
individual businesses simply do not respond. They ... apparently
have not had the time to sit down and look at the documentation
that comes across their desk, along with trying to conduct business
in general; and so, they don't report." He said with nine
individuals to cover the entire state, the issue would be how to
conduct this placarding program in addition to all the other
enforcement and plan review processes, for example.
REPRESENTATIVE BERKOWITZ asked, "Is what you're saying is because
you don't have the resources, you can't see that the program is
carried through?"
MR. GOODRICH replied, "That is correct."
REPRESENTATIVE BERKOWITZ asked whether the program itself is
objectionable to Mr. Goodrich.
MR. GOODRICH replied, "The program itself, it has two simple
factors. One is the reporting of hazardous substances that can be
passed along for the use of fire departments as they log that
information to their pre-fire plans. ... And that component of the
program is useful. ... The actual placarding portion of the
program, which goes hand-in-hand with that, has been deemed
primarily to be useless, simply because it is not sufficient enough
to get the firefighter, early on, full information of what they can
expect to see when they go inside of a building, because they've
been placarded for the most hazardous substance that is ever on the
property."
MR. GOODRICH explained, "The problem comes in when you have a fire
and you mix more than one product with anything else; you get into
heat and time, and in many cases, pressure. So, you're
manufacturing so many different hazardous materials that it isn't
possible at all to even know what you have there. So, we default
to what we call a `uniform standard of operation' or `hazardous
conditions.' Now, the University of Alaska has seen fit to
substantially modify the program, although it is in complete
noncompliance with anybody else. But they wanted to be more
specific, and they have done so, and their program seems to work
with them. And on the face of it, the program is not entirely
practical."
REPRESENTATIVE BERKOWITZ suggested in nonemergency situations, a
skull-and-crossbones, lightning bolt or other symbol would be
useful to keep children away, warn "don't smoke," and so forth. He
asked whether he was reading too much into the placarding.
MR. GOODRICH explained that there is a six-by-six diamond, split
into four smaller diamonds with different colors, each of which has
a number from one to four. The general public has no idea how
those colors and the numbers within them relate. It is even
problematic keeping firefighters up to speed with that. In fact,
the Anchorage Fire Department puts the benchmark for those on the
backs of bathroom doors, as a memory aid for the firefighters.
CHAIRMAN GREEN expressed concern that while it might work in
Anchorage, it would be difficult elsewhere and very expensive. He
mentioned the $1 million figure.
REPRESENTATIVE BERKOWITZ withdrew the amendment.
REPRESENTATIVE BUNDE made a motion to move 0-LS0214\F, Lauterbach,
4/11/97, as amended, from committee with individual recommendations
and attached fiscal notes. There being no objection, HCS CSSB
39(JUD) moved from the House Judiciary Standing Committee.
CSSB 3(JUD) - MINOR'S CURFEW VIOLATIONS
[Contains discussion of HB 16 following number 0903]
TAPE 97-75, SIDE A
Number 0006
CHAIRMAN GREEN announced the next item of business was CS for
Senate Bill No. 3(JUD), "An Act authorizing prosecution and trial
in the district court of municipal curfew violations, and providing
for punishment of minors upon conviction for violation of a curfew
ordinance." It had been heard previously by the committee.
MYRNA MAYNARD, Legislative Administrative Assistant to Senator Drue
Pearce, came forward on behalf of the sponsor. With her was Jack
Chenoweth of Legislative Legal Services, to whom she had provided
what she thought was Representative Porter's concern. Mr.
Chenoweth had come up with an amendment (0-LS0078\E.1), which was
in committee packets. However, this amendment would necessitate a
concurrent resolution because it changes the title. She asked
whether Representative Porter had read the amendment.
REPRESENTATIVE PORTER said no.
MS. MAYNARD said she wasn't sure it did what Representative Porter
wanted to do.
REPRESENTATIVE BUNDE requested confirmation that if they adopted
this amendment, a municipality might establish its own ordinance to
charge parents with being a part of this curfew violation but that
this law would not require that a municipality do so.
Number 0178
ANNE CARPENETI, Assistant Attorney General, Legal Services Section,
Criminal Division, Department of Law, said she had not had much
chance to read it but thought it was optional.
REPRESENTATIVE BUNDE and CHAIRMAN GREEN noted that Mr. Chenoweth,
the author, was agreeing.
REPRESENTATIVE BUNDE said he'd wanted to clarify that they weren't
going to establish a law that would require parents to be arrested;
however, if a municipality felt this was a problem and would like
to follow up Representative Porter's concern about involving
parents, a concern which he himself shared, a municipality could
write an ordinance to achieve that.
REPRESENTATIVE PORTER pointed out there was a second alternative,
which he believed Ms. Carpeneti was prepared to explain.
Number 0335
MS. CARPENETI said she'd been asked to find out what happens to
parents if they don't show up. She'd spoken with Judge Froehlich
in Juneau, who handles these cases that go directly to district
court and not through the Division of Family and Youth Services
(DFYS); those are minor consuming cases, tobacco cases and various
traffic offenses. The law requires parents to accompany their
children presently. Judge Froehlich told Ms. Carpeneti that
parents generally do show up with their kids, and if they don't, a
summons is issued. It is served by the Judicial Services; they
generally call the parents and ask whether they want to be served
personally or to pick up the summons at the courthouse, in person.
CHAIRMAN GREEN stated his understanding that it isn't "a contempt"
if they don't show up but that a summons is issued.
MS. CARPENETI responded, "If they don't show up. I assume at a
certain point, if they are served with a summons and they don't
show up, then maybe an order -- and Judge Froehlich told me that
only once has he had to issue an order to show cause why a parent
could not be held in contempt for not showing up."
REPRESENTATIVE BUNDE asked whether they were doing this based on
state law or local ordinance.
MS. CARPENETI said state law.
REPRESENTATIVE BUNDE asked: And this summons is issued after the
young person has failed to respond to a summons?
MS. CARPENETI stated her belief that a summons is issued, before
the first appearance, to the parents too.
REPRESENTATIVE BUNDE asked whether the summons for the young person
and the summons for the parent are issued concurrently.
MS. CARPENETI replied, "I assume if the person is cited for an
offense, then that contains the summons, and then they issue a
summons for the parent separately." She had spoken with Doug
Wooliver of the Alaska Court System, who had checked that morning
with the Anchorage court system. She explained that the people in
the court system are the ones who know, because the state doesn't
appear on these cases, nor does DFYS. Mr. Wooliver had told her
that they do require in Anchorage that the parents show up, and if
they don't, they issue a summons for them to come in.
Number 0515
REPRESENTATIVE PORTER asked what the bill does, then, in context of
the existing system.
JACK CHENOWETH, Attorney, Legislative Legal and Research Services,
Legislative Affairs Agency, explained that the sponsor had asked
that the provision for violation of a curfew be added to the list
of offenses for which a minor can be prosecuted in district court.
In Anchorage, much of the handling of these relatively low-level
offenses is through a civil or administrative process that
Anchorage takes advantage of under the municipal code; therefore,
an exception had to be built in for that. As the bill moved along,
provision was made for a fine of not more than $250 and the ability
to satisfy that fine through a community work provision, all added
by the Senate Judiciary Committee.
Number 0609
REPRESENTATIVE PORTER asked whether it allows a juvenile case that
would have been handled in "Juneau court" to go to district court.
MR. CHENOWETH said the statutory law today simply authorizes a
municipality to adopt curfew ordinances. He explained, "The
question, I guess, in the sponsor's mind is: Where do these go?
How are these to be handled? And in the absence of anything else,
I assume that they would be handled through the juvenile
adjudication and delinquency process, because there would be no
exception made for them for a criminal hearing. So, the sponsor's
approach was to move them out from under the adjudication-
delinquency 47.12 provisions and over into the criminal side, with
jurisdiction assigned in the district court. And we've kind of
gone on from there."
Number 0671
REPRESENTATIVE PORTER asked who is requesting this.
MS. MAYNARD said it came about because the City and Borough of
Juneau wanted a curfew ordinance. Only through the DFYS or
superior court could those cases be handled. However, the DFYS is
overloaded, and Juneau didn't do a curfew ordinance because there
is no point when kids know nothing will happen if they break
curfew.
REPRESENTATIVE PORTER asked Ms. Carpeneti to stop him if he got off
track, then stated his understanding that the other alternative
would allow these to go through the civil side, such as with the
programs in Anchorage for this kind of an offense. He suggested
Juneau is asking to take an area of violation that the DFYS doesn't
have time to handle and put it into the district court, which
doesn't have time to handle it.
MS. MAYNARD said she'd also spoken to Judge Froehlich, who likes
this bill. He has a Friday court for juvenile offenses dealing
with tobacco, alcohol, and so forth. He feels that his caseload
will not increase all that much, because of the kids that are
drinking and speeding, for example, 75 percent will be the same
ones. She added that the bill does not change what Anchorage is
doing now.
Number 0828
REPRESENTATIVE CROFT asked why Juneau cannot do whatever Anchorage
is doing.
MR. CHENOWETH said there is no good reason. His sense is that
Anchorage has the advantage of a population size that will support
that kind of administrative arrangement; that may not be as
possible or desirable in Juneau, which is one-tenth the size.
REPRESENTATIVE CROFT asked how Anchorage handles this.
Number 0903
MARGOT KNUTH, Assistant Attorney General, Criminal Division,
Department of Law, specified she was representing the Governor's
Children's Cabinet on youth and justice initiatives. The procedure
used by the Municipality of Anchorage in curfew matters is one of
the models this Administration raises to the rest of the state for
effective intervention with at-risk juveniles, including curfew
violators. Anchorage had adopted a system whereby the juvenile is
summonsed to appear before a hearing officer who is acting as a
judge. The civil penalties available don't include detention, nor
is there a criminal record. But short of that, there is a
mechanism for a fine or community work service in lieu of it.
MS. KNUTH said HB 16 includes provisions that would encourage other
cities and municipalities to adopt similar programs. Criminalizing
curfew violations is inconsistent with the direction the
Administration is trying to move. Instead of being serious
offenders, these are kids at risk of becoming criminals. What is
appropriate is intervention, rather than prosecution.
MS. KNUTH continued, "We did ask the sponsor of the bill if she
would include the Governor's initiatives in this area, and she's
been reluctant to do so to this point. And there's some
philosophical disagreements that people have on how to relate to
at-risk youth. And, frankly, Judge Froehlich is pretty much a one-
man crusade in this state. He's the only judge I know who is
putting kids in detention on tobacco violations, and Johnson Center
is seriously overcrowded. There's a difference of opinion on
whether that is an appropriate disposition for those cases."
MS. KNUTH said Juneau could adopt the same "hearing officer
diversion system" that is working well in Anchorage. She noted
that Anchorage has no intention of utilizing this if it passes.
The prosecuting attorney there does not want to do a bunch of
curfew violations; their resources are strapped already.
Number 1069
CHAIRMAN GREEN asked whether Ms. Knuth knew of municipalities other
than Anchorage or Juneau having curfew laws that this would affect.
MS. KNUTH did not know how many municipalities had adopted curfew
ordinances, although she believed Fairbanks had done so. She noted
that HB 16 was coming to this committee soon. She suggested it
might afford the committee an opportunity to review the array of
options available to respond to this level of offense.
CHAIRMAN GREEN asked whether there was any objection to holding
this over and looking at HB 16 as well; he then announced they
would revisit SB 3 when they take up HB 16.
CSSB 70(JUD) - DISCHARGE OF FIREARMS AT BLDGS.
Number 1175
CHAIRMAN GREEN announced the next item of business was CS for
Senate Bill No. 70(JUD), "An Act relating to the discharge of
firearms at or in the direction of buildings and dwellings." As
only a few minutes remained, he asked whether the sponsor's
representative could lead them through the bill that quickly.
JAMES ARMSTRONG, Legislative Assistant to Senator Dave Donley,
presented the bill on behalf of the sponsor. Basically, it creates
a class B felony, the discharge of a firearm at a dwelling or in
the direction of a building when it is occupied. Under existing
law, these offenses are classified as misdemeanors unless proof is
available that the person knew the building was occupied at the
time of the shooting or there was more than $500 in property
damage. Mr. Armstrong mentioned shootings at dwellings in Juneau
and Anchorage in the past year. He said the sponsor believes there
is no justification for this type of activity, and the bill was
introduced to address this problem.
Number 1227
REPRESENTATIVE BERKOWITZ referred to page 2, subsection (3)(A)(ii),
and said the language is essentially the same as that contained in
Section 3; that raises equal protection problems in the event that
there is a prosecution based on the felony, rather than the
misdemeanor. Generally, when the level of a charge relies solely
on prosecutorial discretion, it is problematic, although he did not
recall offhand the cases that stand for that proposition. He
suggested it would be easy to pull out subsection (A)(ii), saying,
"Then we're still covered."
ANNE CARPENETI testified again on behalf of the Department of Law,
saying that is also the department's concern: When similar conduct
is covered by two different statutes, there are potential problems
with prosecutorial discretion. She explained, "And the problem is,
there are no other circumstances that separate the two. ... If
there were circumstances here that separated the two, there are
other provisions in law that say, `except for under other
circumstances.' But here, it's really the same language."
CHAIRMAN GREEN asked: If Section 3 were gone, would the bill be as
effective?
MS. CARPENETI replied, "No, if (3)(A)(ii) were gone." She stated
her belief that that was Representative Berkowitz's suggestion.
REPRESENTATIVE BERKOWITZ responded that either one could disappear.
MS. CARPENETI stated, "Well, if Section 3 were gone, ... what you
would have is this section in law, paragraph (3) under .210, which
is, I believe, fifth-degree misconduct involving weapons, without
that provision. So, they would still be the same: discharge of
weapon. Well, it wouldn't be at a building. That's the
difference."
Number 1365
REPRESENTATIVE BERKOWITZ said it was still similar enough that it
wouldn't withstand scrutiny. "And you'd automatically see this,
what's intended to be a B felony, bumped down to be an A
misdemeanor," he added.
MS. CARPENETI said it would be a problem. It is hard to predict
the outcome, and the state would hope to win on it, but she thought
it definitely would be litigated. She stated, "Our suggestion was
at least to remove the provision in (ii) that says, `with a risk of
damage to property or'. I think the problem is that when you're
dealing with just damage to property, you've got charges under
criminal mischief and charges under this section, and this section
doesn't have any provision gradating the damage to property
according to the amount of damage that's done ...."
REPRESENTATIVE BERKOWITZ said he didn't think they were giving up
anything. "If you fire a gun at a building and there's a risk of
physical injury, then you're almost certainly in the situation of
an assault," he added.
MS. CARPENETI responded, "Well, particularly because the intent
language at the beginning of the bill says that ... if you
discharge a firearm at a building and the building is occupied, the
legislative intent is that it's strict liability as to that element
that the building was occupied. So, yes, I would agree with you."
REPRESENTATIVE CROFT said the part about risk of damage to property
had confused him when he read it. It seemed that anytime one
discharged a firearm at a building, there was risk of damage to
property, namely, to the building. One could be just shooting at
a shed, knowing it was unoccupied. While it might not be the best
conduct, did it rise to this level? As he read the bill, it would
do so under this provision. He could understand doing it for a
dwelling, which is likely to be occupied, or a building that may be
unlikely to be occupied but that is, in fact. "A school is what we
were using as an example," he said. "So, those two, because they
have serious risks to people, make some sense to me. Raising to
this level shooting at a shed doesn't seem to make sense."
MR. ARMSTRONG informed members that the sponsor had talked with the
Department of Law before the hearing and was amenable to the
department's suggested amendment to remove that portion.
CHAIRMAN GREEN asked whether that was removal of "a risk of damage
to property or."
Number 1566
REPRESENTATIVE CROFT offered Amendment 1 to CSSB 70(JUD): "To
eliminate from line 13 on page 2, `a risk of damage to' and on
[line] 14, `property or'. So, it would take out that, and it would
read, `with reckless disregard for a risk of physical injury to a
person'."
REPRESENTATIVE BERKOWITZ objected for discussion purposes, saying
they were still left with the same problem. He stated, "Since
you've written in the disjunctive `risk of damage to property or
[a] risk of physical injury,' that's the same language that's
contained in Section 3." He stated his understanding that the
Department of Law wanted to remove the entire subsection (ii).
MS. CARPENETI responded, "That's what we would like to see removed.
There is a difference, in that under (3), we're talking about a
building. And ... that's paragraph (3) on line 10. And then
paragraph (3) on line 17, which is a different statute, which is
misconduct involving weapons, I believe, in the fifth degree, ...
there is a difference in that the one on line 17 is not necessarily
at a building. So, I think we could live with the amendment that
was suggested by Representative Croft, although our original
position was we would like to see all of (ii) out."
REPRESENTATIVE BERKOWITZ responded, "I think what that does is
confuse it, because it's different. If the building is occupied
and there's no risk of physical injury, you're shooting at one end
of the building and someone's at the other end, that's still swept
up under the B felony." He said there is an internal contradiction
because that case is somehow viewed as the same as someone in a
room being shot at. He stated, "And if I were to be in the
situation where I was having to defend somebody, that sort of
discrepancy is something you might seize on and invite litigation,
whereas if the building's occupied, ... it doesn't matter. If we
just do away with (ii), we have no problems whatsoever."
Number 1704
REPRESENTATIVE NORMAN ROKEBERG said this really hits home to him,
given 30 years in commercial real estate.
CHAIRMAN GREEN said, "You don't like your buildings shot at."
REPRESENTATIVE ROKEBERG agreed; it is a real risk and happens
frequently. He believes there should be a presumption that a
building is occupied, even at night; therefore, the "second
portion" has some merit. Clearly, there is a problem in terms of
equal protection and conflict that should be corrected. But the
language is clear that in (i), the building is occupied, and he
believes (ii) puts the burden on somebody to make sure it isn't
occupied. "So, I think that is absolutely necessary," he stated.
"But I'm not sure if it corrects this other problem that we need to
correct. Maybe we need to remove the misdemeanor from the books;
I'm not sure how that works under the Title 11-type of structure
you want to do." He said this bill is meaningful and applies to
our everyday lives.
REPRESENTATIVE CROFT suggested perhaps the problem was (i), not
(ii). It seemed to make sense to have a presumption in shooting at
a dwelling that people are there; therefore, it is in the same
category as a crime against a person, as is shooting at a building
with reckless disregard of physical injury to a person. He
suggested (i) creates a sort of weird strict liability. A person
could have no reason to know; it would therefore not be reckless
conduct. For example, a person could have checked but someone
could be hiding in the cellar. This language doesn't say "you knew
it was occupied" or "you should have known it was occupied." While
it is not good conduct to shoot at buildings, the question is when
it occurs. Although big thefts, for example, become felonies, the
more typical distinction is whether there is a risk to a person.
Removing the property language and strict liability would set up a
two-tier system: "a dwelling, we're going to presume it's
occupied; a building, if you should have known it was occupied."
Number 1864
REPRESENTATIVE PORTER said he'd prefer to eliminate (i) rather than
(ii). There are situations where law enforcement officers and
others have a legitimate right to use a firearm. For example, an
officer might shoot at and hit a person, yet have committed a
felony by shooting in the direction of a building. He didn't
believe that was the intent. He suggested they qualify who the
person is.
CHAIRMAN GREEN asked: If they eliminate (i) and retain (ii), do
they still have the conflict with lines 17 through 19?
REPRESENTATIVE BERKOWITZ responded, "I think you do if we keep the
property section in, but I don't believe we do if you take the
property section out."
REPRESENTATIVE CROFT pointed out that it is a property phrase.
REPRESENTATIVE PORTER said that would be his recommendation. "And
I still would like to have some qualifier on the person," he added.
REPRESENTATIVE BERKOWITZ suggested in a shoot-out situation, the
"law attaching to justification would attach."
REPRESENTATIVE PORTER said he would not be comfortable with that.
MS. CARPENETI responded to the proposal to eliminate (i). She
understood from the sponsor that the purpose is to criminalize at
a higher level drive-by shootings of buildings. However, if a
person shot at a store in the middle of the night, it would be hard
for the state to prove there was a substantial risk that someone
was inside and that the person disregarded the risk, because there
isn't a big risk of people being inside a building.
REPRESENTATIVE PORTER suggested in that case it was property
damage, and why were they talking about a felony?
Number 1982
REPRESENTATIVE ROKEBERG indicated a common phenomenon in urban
areas is a bullet striking a glass wall of an office building in
which the glass sections are worth $700 to $1,500 each. However,
that was not the point here, and he agreed with Representative
Porter, he added.
REPRESENTATIVE PORTER said the vast majority of those cases involve
a slingshot or pellet gun, which are not firearms.
REPRESENTATIVE BERKOWITZ pointed out that those are also felonies.
REPRESENTATIVE ROKEBERG suggested firing a firearm within a
building should perhaps be addressed. In addition, in canvassing
middle-class neighborhoods in Anchorage, he had seen residences
with bullet holes in the front doors, which he believed were from
drive-by shootings.
REPRESENTATIVE CROFT recapped Amendment 1, saying it "was to take
property damage out of (ii)."
CHAIRMAN GREEN noted that it deletes, "a risk of damage [to]
property or".
REPRESENTATIVE BERKOWITZ withdrew his objection.
CHAIRMAN GREEN announced that there being no further objection,
Amendment 1 was adopted.
REPRESENTATIVE BERKOWITZ offered Amendment 2, to withdraw
subsection (A)(i)."
Number 2081
REPRESENTATIVE PORTER asked the Department of Law to assist him
with a friendly amendment that would put some qualifying term in
front of "person" on line 14, to eliminate someone who was
"lawfully bought and paid for." He explained, "In other words, I
am shooting at this person with absolute reckless disregard for his
safety, because I want to shoot him and I have a legal right to
shoot him. I don't want to be guilty of a felony."
MS. CARPENETI said she would be happy to provide that. It would
take a little thought to say it clearly. She offered to bring it
in that afternoon or the following day.
REPRESENTATIVE CROFT suggested, "discharge a firearm without legal
justification at or in the direction of a ...."
MS. CARPENETI acknowledged that and said, "But I don't know that
that would also qualify dwelling; ... and I would have to think
about whether you want to qualify dwelling with that."
CHAIRMAN GREEN asked whether there was an objection to Amendment 2,
to withdraw (i). There being none, Amendment 2 was adopted.
REPRESENTATIVE PORTER said he still had the same question. He
referred to page 2, line 15, which says, "(B) a dwelling," and
asked: If they left (B) in place, what about a legitimate shooting
that happens to be in that general direction?
REPRESENTATIVE BERKOWITZ suggested if they put in some legal
justification on line 10 to that effect, it would also cover a
dwelling.
REPRESENTATIVE CROFT restated his prior suggestion, specifying:
"Line 10, between `firearm' and `at', putting in the words,
`without legal justification', to read: `discharges a firearm
without legal justification at or in the direction of ....'"
CHAIRMAN GREEN said that takes care of both.
REPRESENTATIVE BERKOWITZ stated, "a building with reckless
disregard for a risk of physical injury to a person. You don't
need `dwelling' then. Well, it could be a tent or something."
REPRESENTATIVE CROFT said it establishes that for a dwelling,
reckless disregard is presumed. "If it's a building, you have to
show something else," he added.
CHAIRMAN GREEN indicated it was a great idea. He asked whether
there was any objection. There being none, Amendment 3 was
adopted.
REPRESENTATIVE CROFT made a motion to move CSSB 70(JUD), as
amended, from committee with individual recommendations and
attached fiscal notes. There being no objection, HCS CSSB 70(JUD)
moved out of the House Judiciary Standing Committee.
ADJOURNMENT
Number 2259
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 3:17 p.m.
| Document Name | Date/Time | Subjects |
|---|