02/26/2001 01:03 PM House JUD
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 26, 2001
1:03 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Scott Ogan, Vice Chair
Representative John Coghill
Representative Kevin Meyer
Representative Albert Kookesh
MEMBERS ABSENT
Representative Jeannette James
Representative Ethan Berkowitz
COMMITTEE CALENDAR
HOUSE BILL NO. 27
"An Act relating to the licensure and registration of
individuals who perform home inspections; relating to home
inspection requirements for residential loans purchased or
approved by the Alaska Housing Finance Corporation; relating to
civil actions by and against home inspectors; and providing for
an effective date."
- MOVED CSHB 27(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 40
"An Act providing for the revocation of driving privileges by a
court for a driver convicted of a violation of traffic laws in
connection with a fatal motor vehicle or commercial motor
vehicle accident; amending Rules 43 and 43.1, Alaska Rules of
Administration; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 119
"An Act exempting joint action agencies from regulation by the
state or municipalities; relating to the relationship between a
joint action agency and the public utilities that form the joint
action agency; relating to powers and immunities of a joint
action agency; requiring filing of the joint action agency
agreement; relating to the financial affairs of a joint action
agency; declaring certain joint action agencies to be political
subdivisions for certain purposes; relating to liability and
indemnification of officers, employees, and agents of joint
action agencies; and defining 'agency agreement' as used with
reference to joint action agencies."
- MOVED CSHB 119(JUD) OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 27
SHORT TITLE:LICENSE HOME INSPECTORS
SPONSOR(S): REPRESENTATIVE(S)ROKEBERG
Jrn-Date Jrn-Page Action
01/08/01 0031 (H) PREFILE RELEASED 1/5/01
01/08/01 0031 (H) READ THE FIRST TIME -
REFERRALS
01/08/01 0031 (H) L&C, JUD, FIN
01/31/01 (H) L&C AT 3:15 PM CAPITOL 17
01/31/01 (H) Heard & Held
MINUTE(L&C)
02/02/01 (H) L&C AT 3:15 PM CAPITOL 17
02/02/01 (H) Heard & Held
02/02/01 (H) MINUTE(L&C)
02/12/01 (H) L&C AT 3:15 PM CAPITOL 17
02/12/01 (H) Moved CSHB 27(L&C) Out of
Committee
MINUTE(L&C)
02/14/01 0311 (H) L&C RPT CS(L&C) 4DP 3NR
02/14/01 0311 (H) DP: CRAWFORD, HAYES, MEYER,
ROKEBERG;
02/14/01 0311 (H) NR: HALCRO, KOTT, MURKOWSKI
02/14/01 0311 (H) FN1: ZERO(REV)
02/14/01 0311 (H) FN2: (CED)
02/23/01 (H) JUD AT 1:00 PM CAPITOL 120
02/23/01 (H) Heard & Held
MINUTE(JUD)
02/26/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 40
SHORT TITLE:REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
01/10/01 0045 (H) READ THE FIRST TIME -
REFERRALS
01/10/01 0045 (H) JUD, FIN
01/10/01 0045 (H) FN1: (ADM)
01/10/01 0045 (H) FN2: ZERO(ADM)
01/10/01 0045 (H) FN3: ZERO(LAW)
01/10/01 0045 (H) GOVERNOR'S TRANSMITTAL LETTER
01/10/01 0045 (H) REFERRED TO JUDICIARY
02/26/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 119
SHORT TITLE:PUBLIC UTILITY JOINT ACTION AGENCIES
SPONSOR(S): REPRESENTATIVE(S)WILSON
Jrn-Date Jrn-Page Action
02/09/01 0281 (H) READ THE FIRST TIME -
REFERRALS
02/09/01 0281 (H) L&C, JUD
02/12/01 (H) L&C AT 3:15 PM CAPITOL 17
02/12/01 (H) Heard & Held
MINUTE(L&C)
02/14/01 0328 (H) COSPONSOR REMOVED: MORGAN
02/21/01 (H) JUD AT 1:00 PM CAPITOL 120
02/21/01 (H) <Bill Canceled>
02/21/01 (H) L&C AT 3:15 PM CAPITOL 17
02/21/01 (H) Moved CSHB 119(L&C) Out of
Committee
MINUTE(L&C)
02/23/01 0403 (H) L&C RPT CS(L&C) NT 5DP 2NR
02/23/01 0404 (H) DP: KOTT, CRAWFORD, HAYES,
MEYER,
02/23/01 0404 (H) MURKOWSKI; NR: HALCRO,
ROKEBERG
02/23/01 0404 (H) FN1: ZERO(CED)
02/23/01 0404 (H) FN2: ZERO(CED)
02/26/01 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JANET SEITZ, Staff
to Representative Norman Rokeberg
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
POSITION STATEMENT: Assisted with presentation of the proposed
CS for HB 27 and answered questions.
GAYLE HORETSKI, Assistant Attorney General
Commercial Section
Civil Division (Juneau)
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Answered questions regarding the proposed
CS for HB 27.
JOHN BITNEY, Legislative Liaison
Alaska Housing Finance Corporation
Department of Revenue
PO Box 101020
Anchorage, Alaska 99510
POSITION STATEMENT: Testified in support of Amendment 1 to the
proposed CS for HB 27.
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Presented HB 40 on behalf of the
administration and answered questions.
DAVID S. CARTER
1920 Shore Drive
Anchorage, Alaska 99515
POSITION STATEMENT: Testified in support of HB 40, suggested an
amendment, and answered questions.
ALBERT TAYLOR
(Address not provided)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 40.
MARY MARSHBURN, Director
Division of Motor Vehicles
Department of Administration
3300B Fairbanks Street
Anchorage, Alaska 99503
POSITION STATEMENT: Answered questions on HB 40.
REPRESENTATIVE PEGGY WILSON
Alaska State Legislature
Capitol Building, Room 409
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 119.
BRIAN BJORKQUIST, Assistant Attorney General
Governmental Affairs Section
Civil Division (Anchorage)
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
POSITION STATEMENT: Explained the proposed amendment to HB 119
and answered questions.
MICHAEL E. SCHRADER, Attorney at Law
AterWynne LLP
Counsel to Four Dam Pool Project Management Committee
222 South West Columbia, Suite 1800
Portland, Oregon 97201-1191
POSITION STATEMENT: Assisted with presentation of HB 119 and
answered questions.
ACTION NARRATIVE
TAPE 01-25, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:03 p.m. Representatives
Rokeberg, Ogan, Coghill, and Meyer were present at the call to
order. Representative Kookesh arrived as the meeting was in
progress.
HB 27 - LICENSE HOME INSPECTORS
Number 0108
CHAIR ROKEBERG announced that the first order of business would
be HOUSE BILL NO. 27, "An Act relating to the licensure and
registration of individuals who perform home inspections;
relating to home inspection requirements for residential loans
purchased or approved by the Alaska Housing Finance Corporation;
relating to civil actions by and against home inspectors; and
providing for an effective date." [Adopted as a work draft at
the previous hearing was version 22-LS0136\S, Lauterbach,
2/20/01.]
CHAIR ROKEBERG, speaking as the sponsor of HB 27, referred to
the provision regarding legal actions against a home inspector
on page 8, and said the original version limited the liability
to the length of the validity of the written home inspection
report, which was 180 days. He said it was never his intention
to limit the liability of the home inspector. He noted that he
sponsored this legislation in response to attempts by home
inspectors to limit their liability, by contract, to the amount
of the fee paid for the home inspection. Typically, a fee for a
home inspection is in the $350 range. He added that according
to his understanding of common law, that type of liability
limitation was unenforceable. He said he was of the opinion
that when a causative action has been brought against a home
inspector due to an error or omission, the court has found the
home inspector fully culpable for resulting damages.
Number 0305
Chair Rokeberg added that while he did not want liability
limited to such a small amount as the typical fee, neither did
he wish to make liability open-ended. He pointed out that the
proposed CS has a time frame of 180 days during which the
written home inspection report has validity, and (referring to
language beginning on page 8, line 13) liability is limited to
causative action commenced within two years of the date of the
home inspection or home inspection report. Chair Rokeberg
expressed confusion at that particular language and asked Ms.
Seitz to explain.
Number 0420
JANET SEITZ, Staff to Representative Norman Rokeberg, Alaska
State Legislature, explained that the drafter thought that by
including language referring to both the date of the inspection
and the date of the report, it would encourage more people to do
what is required by law, which is to submit the written home
inspection report to the client. She further clarified that the
two years begins running either on the date of the home
inspection, if the action is based on the home inspection, or on
the date of the home inspection report, if the action is based
on the report.
Number 0540
GAYLE HORETSKI, Assistant Attorney General, Commercial Section,
Civil Division (Juneau), Department of Law, said that that was
also her interpretation of when the two years begins. [The
language] provided for "either/or". She added that the
committee could instead choose to make [the two years begin] at
the later time, although she acknowledged that it was a given
that the report would happen after the inspection. She said she
was not sure why anyone would want to start the two-year period
with the date of the inspection rather than the report.
CHAIR ROKEBERG said that he felt the language should reflect
that the two-year period starts on the date of the written
report in order to avoid confusion. He added that this
liability limitation language provided an exception to the
state's statute of limitation on contracts, which is three
years.
Number 0637
MS. HORETSKI clarified that instead, the statutes of limitation
vary quite a bit: two, three, six, and ten years. She added
that the "fall-back" statute of limitation is ten years if
nothing has been expressly provided for in statute. She also
explained that a statute of limitation runs from a given time
forward and is a set limit, whereas a statute of repose focuses
on the time that a defect is discovered. Further, the statute
of repose, found in [AS 09.10.55], pertains largely to
architectural/engineering defects that are not immediately
apparent.
CHAIR ROKEBERG noted that when the appropriate time came, he
would offer a conceptual amendment. He went on to say that the
main point of the preceding discussion was to explain that the
proposed CS allowed the consumer an opportunity to bring action
against a home inspector for an omission or error.
CHAIR ROKEBERG also explained that the proposed CS, on page 14,
line 1, repealed the portion of the Alaska Housing Finance
Corporation (AHFC) statute that allowed for limitation of
liability of home inspectors who were performing under the AHFC
statute. He added that this change to [AS 18.56.300] was for
the purpose of maintaining consistency with the intent of the
proposed CS.
Number 0800
REPRESENTATIVE OGAN referred to page 10, line 10, and asked if a
registered engineer or architect who affixes his or her seal to
a written home inspection report or signs the report with his or
her registration number on it could be held liable.
CHAIR ROKEBERG said that a registered engineer or architect
would not be held liable because that person would not be a
licensed home inspector. To further his explanation, he said
that there was controversy surrounding the issue of whether
registered engineers and architects who perform home inspections
should be licensed [as home inspectors]. He said he believed
that these individuals should be licensed [as home inspectors]
but added that as a matter of public policy, it would not be
prudent. He added that these individuals could perform home
inspections but could not portray to the public that they were
licensed home inspectors; thus, by signing/sealing any home
inspection reports, they could become liable by virtue of being
a registered engineer or architect. The recourse for an
aggrieved consumer, then, would be to complain to the board of
architects/engineers.
Number 0921
CHAIR ROKEBERG noted that currently, there is not any avenue of
redress for consumers who have complaints against home
inspectors. He also noted that currently, home inspectors do
not have any regulations to comply with. Another point he made
was that Juneau, Anchorage, Matanuska-Susitna (Mat-Su), and
Fairbanks have different standards of practice from each other.
For instance, the main inspectors in Juneau have been engineers,
and when the legislature has called a document a home inspection
report, the inspectors in Juneau have had a different document
in mind. Representative Rokeberg said he found that the first
hurdle to overcome for this type of legislation was to define
terms so that all parties, in all areas of the state, could work
from a common base.
REPRESENTATIVE OGAN also referred to language on pages 10 and 11
and asked if that meant that a licensed heating subcontractor
(or a licensed electrician) could not come in and do an
inspection on a heating system (or electrical system) unless he
or she were also a licensed home inspector.
CHAIR ROKEBERG said that that was not the meaning; the proposed
CS would not in any way inhibit or prohibit someone during the
normal scope of his or her work. He pointed out that the home
inspector's duties are more "all-encompassing," and with the
proposed CS, those duties and procedures would be embellished
and defined to a greater degree by the board [of home
inspectors]. He also said that in his opinion, specific
exemptions for people with specialty subcontractor licenses were
not needed because they were not performing home inspections;
those individuals would be focusing on specific components
instead of writing inspection reports on the multiple components
of a home. Chair Rokeberg said, for the record, that the
proposed CS was not intended to be for those people with
specialty subcontractor licenses who were doing their normal
scope of work.
Number 1173
CHAIR ROKEBERG brought attention to amendment 22-LS0136\S.1,
Lauterbach, 2/26/01 [called Amendment 1], which reads as
follows:
Page 12, following line 6:
Insert a new bill section to read:
"* Sec. 4. AS 08.57.010(a) is amended to read:
(a) There is created the Board of Home
Inspectors consisting of five voting members and one
nonvoting member. Three voting members shall be
licensed under this chapter and shall have been
engaged in the practice of home inspection in the
state for three years immediately preceding
appointment, one voting member shall be a licensed
real estate broker, associate broker, or certified
real estate appraiser, and one voting member shall be
a public member. [THE EXECUTIVE DIRECTOR EMPLOYED BY
THE ALASKA HOUSING FINANCE CORPORATION UNDER
AS 18.56.052, OR A DESIGNEE OF THE EXECUTIVE DIRECTOR,
SHALL SERVE EX OFFICIO AS A NONVOTING MEMBER OF THE
BOARD.]"
Renumber the following bill sections accordingly.
Page 14, following line 1:
Insert a new bill section to read:
"*Sec. 10. AS 18.57.010(b) is repealed."
Renumber the following bill sections accordingly.
Page 14, line 4:
Delete "sec. 8"
Insert "sec. 9"
Page 15, following line 26:
Insert a new bill section to read:
"*Sec. 15. Sections 4 and 10 of this Act take
effect July 1, 2005."
Renumber the following bill sections accordingly.
Page 15, line 28:
Delete "sec. 4"
Insert "sec. 5"
Page 15, line 30:
Delete "Section 5"
Insert "Section 6"
Page 15, line 31:
Delete "Sections 8 and 9"
Insert "Sections 9 and 11"
Page 16, line 1:
Delete "secs. 13 - 15"
Insert "secs. 15 - 18"
CHAIR ROKEBERG said that Amendment 1 resulted in the AHFC ex
officio member being removed from the board effective July 1,
2005. This would ensure that the AHFC is involved in the
startup process of the board, and then allow the AHFC
representative to drop off the board.
Number 1276
JOHN BITNEY, Legislative Liaison, Alaska Housing Finance
Corporation, Department of Revenue, testified via teleconference
and simply expressed satisfaction with Amendment 1.
Number 1292
CHAIR ROKEBERG made a motion to adopt Amendment 1. There being
no objection, it was so ordered.
Number 1317
CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 2, on
[page 8,] line 15, to delete "a home inspection or"; on line 16,
to delete "respectively"; and on line 17, to delete "home
inspection or", "respectively" and the comma.
CHAIR ROKEBERG explained that without the amendment, the
liability period could start on either the date of the
inspection or the date of the report. He said his intention
[with Conceptual Amendment 2] was to have the two-year liability
period start on a single date - the date of the written home
inspection report. He said he thought [Conceptual Amendment 2]
would help avoid confusion on the part of the public.
Number 1466
REPRESENTATIVE COGHILL asked whether [Conceptual Amendment 2]
would encourage a home inspector to delay the written home
inspection report.
REPRESENTATIVE ROKEBERG said that as a practical matter, a home
inspector is not paid until the written home inspection report
is delivered.
REPRESENTATIVE MEYER added that he thought [Conceptual Amendment
2] was an important feature of the proposed CS, and he supported
it.
Number 1517
CHAIR ROKEBERG asked whether there was any objection to the
adoption of Conceptual Amendment 2. There being no objection,
it was so ordered.
Number 1527
CHAIR ROKEBERG made a motion to adopt Amendment 3, which reads
as follows:
Page 4, line 1:
After: "or"
Insert: "an unresolved"
Page 4, line 13:
After: "or"
Insert: "an unresolved"
Number 1546
MS. SEITZ explained that current language in the proposed CS
reflects that an unresolved criminal complaint or disciplinary
action was sufficient to disqualify a person from obtaining his
or her home inspection license or registering as an associate
home inspector. With Amendment 3, the language would reflect
that the disciplinary action must be unresolved in order to
disqualify a person from obtaining a license or registering as
an associate home inspector.
Number 1614
CHAIR ROKEBERG asked whether there was any objection to the
adoption of Conceptual Amendment 3. There being no objection,
it was so ordered.
REPRESENTATIVE OGAN commented that he had not received any
complaints about home inspectors; therefore, he did not see an
overriding need to create another level of bureaucracy in the
state.
CHAIR ROKEBERG responded that he had been shown a need for the
proposed CS. Currently there is a complete void of regulatory
controls or avenues of complaint for the public. He said he was
surprised that Representative Ogan had not received any
complaints, given the area that Representative Ogan represents.
He himself had received many complaints, particularly from the
Mat-Su area, which is completely unregulated and without
building code enforcement. In addition, the standards of
practice and construction [in the Mat-Su area] verge on "almost
the unbankable." He pointed out that [the Mat-Su area] does
have International Conference of Building Officials (ICBO)
inspection activity because some homes do qualify for AHFC
loans. He said he was sure that other lending institutions are
also demanding home inspections in [the Mat-Su] area, but
because there is not any building code enforcement, there is a
tendency for shoddy building practices. He reiterated that
currently, when people are financially injured by an unregulated
home inspection industry, they are without recourse.
REPRESENTATIVE COGHILL commented that the fiscal note assumes
that the board consists of members from the following locations:
two each from Anchorage and Juneau, and one from Fairbanks. He
suggested that instead, one of those members should come from
the Mat-Su area.
CHAIR ROKEBERG agreed with Representative Coghill's reasoning
but counseled against being geographically specific due to a
limited recruitment pool. He acknowledged, however, that there
was a tendency on the part of the governor and the legislature
to take into account geographic distribution with regard to
board compositions during appointments and confirmations.
Number 1807
REPRESENTATIVE MEYER spoke in favor of the proposed CS. He
added that his district had experienced a lot of growth, and the
proposed CS would assure both homebuyers and homebuilders that
legitimate home inspectors were inspecting houses. He said that
although he agreed with Representative Ogan's opinions regarding
another layer of bureaucracy, he believed that sometimes
[another layer of bureaucracy] was necessary in order to ensure
the protection and safety of the people.
CHAIR ROKEBERG noted that during his tenure with the
legislature, this was the first time he had attempted to create
another board or commission, and he was still looking for ways
to cut the board's costs. He added that it is constitutionally
mandated to provide [legislative] oversight for boards and
commissions once they are created. Thus, if public policy
demands that a board or commission be created, then the
legislature is required to regulate its activities. He also
said that he did not like creating more bureaucracy, but [the
proposed CS] was a self-financed way to protect the public
without affecting the budget.
Number 1920
REPRESENTATIVE MEYER moved to report CSHB 27(L&C), version 22-
LS0136\S, Lauterbach, 02/20/01, as amended, out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, CSHB 27(JUD) was reported from
the House Judiciary Standing Committee.
CHAIR ROKEBERG called an at-ease from 1:35 p.m. to 1:45 p.m.
HB 40 - REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT
Number 1962
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 40, "An Act providing for the revocation of
driving privileges by a court for a driver convicted of a
violation of traffic laws in connection with a fatal motor
vehicle or commercial motor vehicle accident; amending Rules 43
and 43.1, Alaska Rules of Administration; and providing for an
effective date."
Number 1977
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law,
presented HB 40 on behalf of the administration. He began by
acknowledging that the legislature is focusing a lot of
attention this year on drunk driving and the problems drunk
drivers cause on Alaska's highways. The ultimate tragic event
that is caused by a drunk driver is the death of someone. He
added, however, that a lot of other types of traffic accidents
result in death, and the impact on the victims is just as great
as if the other driver were driving drunk. Yet, because no
alcohol is involved in these types of incidents, there is very
little that happens to the other driver with regard to
penalties. He said that most of these incidents occur when
someone, either because of inattentiveness or by falling asleep
at the wheel, drives off the road, crosses the median, or
crosses the centerline, and thus crashes into a person or
another car and kills someone.
MR. GUANELI went on to say HB 40 was introduced as a result of
complaints that in cases resulting in death without the
contributing factor of alcohol, nothing was being done. He
added that there was not a large volume of these incidents, just
a half-dozen or so, per year. He said that HB 40 would take
away, for a year, the driver's license of a driver who, as a
result of violating a law, is found by a court to have caused
the death of someone. Mr. Guaneli clarified that "violating a
law" could mean driving off the road, driving across the
centerline, or simple driving too fast for conditions. He said
that in circumstances where there is a true nexus between
violating a law and contributing to the death of someone, it
would be appropriate to take away a driver's license for a year.
Number 2098
MR. GUANELI pointed out that in cases of license revocation due
to drunk driving, there is a period of time when the person
cannot drive at all, and then during the last 30 days [of the
revocation period] the person may be issued a limited license
for the purpose of earning a livelihood. In contrast, HB 40
proposes that a person could get a limited license for the
entire period [of one year] if he or she can convince the courts
that his or her livelihood depends on [the limited license].
This provision would allow a person to use a limited license at
work, or to get to and from work, but not at any other time. He
said this provision of HB 40 would limit the economic hardship
placed on a person whose license has been revoked, while
contributing to the protection of the public.
MR. GUANELI explained that current law sets out a continuum of
mental states, which are used to convict people of crimes, and
thus the department is prevented from acting on these types of
cases. For instance, if a person is acting recklessly, as
defined by law, and that person kills someone while driving a
car, the offense is manslaughter. If a person is acting with
criminal negligence, the offense is criminal negligent homicide.
However, most of these instances, as described in HB 40, do not
rise to the level whereby a criminal prosecution can occur. All
the department is left with to prosecute are violations such as
speeding or going over the centerline. Regardless of the fact
that these offenses appear innocuous, someone has died, and the
impact on the families is just as severe as if it were an
offense involving alcohol.
Number 2182
REPRESENTATIVE OGAN commented that he was glad to see HB 40
because he had introduced similar legislation four years ago.
At that time, the department had argued that the "lesser-
included-offense issue" would hinder felony convictions of
manslaughter associated with drinking while intoxicated (DWI).
Representative Ogan inquired whether the same issue would be a
problem in HB 40.
MR. GUANELI responded that HB 40 was simply a license revocation
provision. To the extent that current law already covers some
conduct, such as going over the centerline, the problem of
instructing the jury on lesser-included offenses always exists.
He said he thought that because these were simply violations, if
the jury were given a choice between manslaughter and driving
over the centerline, and the circumstances were such that they
fit manslaughter, the jury would choose manslaughter. He said
he had very little concern that the jury would opt for the
lesser violation. He added that HB 40 does not create new
offenses; instead, it just addresses penalties or the remedial
action the state wants to take, as a result of an offense that
is already under existing law.
Number 2287
REPRESENTATIVE OGAN confirmed that his own legislation [from a
previous session] would have created a new offense. He added
that he thought HB 40 was very important legislation. He
described a situation that he was familiar with, in which a
person caused the death of two people and only received a fine
of $300. He also knew of another situation in which the person,
while in the course of running a red light, killed someone, and
received only a $50 fine.
CHAIR ROKEBERG expressed concern over the issue of criminal
conduct caused by a lack of sleep. He asked Representative Ogan
to further describe his legislation from four years ago.
REPRESENTATIVE OGAN explained that he had endeavored to create a
new type of crime for vehicular manslaughter.
Number 2369
MR. GUANELI further explained that Representative Ogan's
legislation [would have] created a new crime for what is now
considered civil negligence. He added that another problem with
that piece of legislation was that every car accident that might
result in a civil lawsuit would be preceded by some form of
criminal prosecution. In addition, civil litigation involving
car accidents is complicated, and as part of the criminal
prosecution process would become problematic.
REPRESENTATIVE COGHILL returned to the issue of license
revocation. He inquired whether a person with a revoked license
[under the provisions of HB 40] could, at some point after the
original hearing, ask for a limited license. He also asked if
it would involve another court hearing.
MR. GUANELI replied that he did not see any provision [in HB 40]
that would prohibit the defendant from coming back to the judge
in order to demonstrate a need for a limited license. There
were not any deadlines by which to demonstrate the need, but it
would involve another court hearing. He also explained that it
would have to be the court that originally revoked the license.
REPRESENTATIVE COGHILL commented on the issue of arraignment
proceedings. He said he had witnessed situations in which
people who had had their license revoked had an additional
revocation period imposed on them, but the additional penalty
seemed inconsequential. He asked how additional penalties would
be handled under HB 40.
MR. GUANELI responded that under HB 40, revocations would run
concurrently, rather than consecutively. He supposed that this
was simply a policy question for the legislature. He had heard
concerns from members of the legislature about cases of repeated
license revocation; he had also noted skepticism from members of
the legislature regarding the appropriateness of repeated
license revocation as a course of action. As a result, the
department has been recommending concurrent penalties. He added
that he thought that with regard to problem drivers, multiple
license revocations have little deterrent effect, and other
steps need to be taken. [Tape changed sides mid-sentence.]
TAPE 01-25, SIDE B
Number 2526
REPRESENTATIVE COGHILL [on the point of arranging for the
limited license] asked, "Is that going to be incumbent upon the
person charged to bring that in?" He noted that it would be
required but wondered how it would be overseen.
MR. GUANELI explained that a person can come in [to court] with
a certificate of employment, or testify that for purposes of
employment, he or she needs a limited license. He said this is
a standard court proceeding, which happens frequently; the
burden is on the driver to come forward and present evidence
that will convince the judge that a limited license is
necessary. He added that for the purposes of HB 40, there are
no additional aggravators; it is a "stand-alone" type of
situation, and [the department] already considers it to be
aggravated because the fatality has occurred.
Number 2480
REPRESENTATIVE OGAN inquired whether HB 40 could be expanded to
include permanent disability. He commented that oftentimes
there are very serious consequences of these types of accidents
even though a death does not occur. He added that in some ways,
becoming a paraplegic/quadriplegic or suffering a severe brain
injury is considered to be as bad as, or worse than, death.
MR. GUANELI said that the inclusion of permanent disability had
not yet been considered. The complaints that had arisen were in
cases of fatalities. He acknowledged it was a good point to
raise. He noted that there is a definition of serious physical
injury under the criminal code (AS 11.81.900(b)) that speaks to
prolonged impairment of bodily functions and fairly serious
injuries. He said he thought that perhaps there should be some
sort of assessment regarding how many such cases there were, and
what kind of impact there would be. He agreed that cases
involving [permanent disabilities] present concerns similar to
those in cases involving fatalities.
REPRESENTATIVE COGHILL noted that he had more questions but
would wait until another time to ask them in order that more
public testimony could be heard. He commented that he was
curious about [Section 1, subsection] (e) and the application of
the court rule change [Section 4]. He said he wondered if it
was adding the death of a person to the traffic laws.
Number 2380
DAVID S. CARTER testified via teleconference and said he was an
attorney practicing in the field of personal injury; however, he
was speaking as a private citizen. He said he wanted to speak
in favor of HB 40; he believed the concept, in general, was
appropriate. As he understands HB 40, it does not really focus
on the egregious conduct of drunk drivers, which is already
covered under another statute, but instead, is an effort to
provide some penalty to people who are involved in accidents
that cause death. He said that typically, if a person violated
a traffic regulation or was held legally responsible for the
accident, his or her insurance company would settle claims
arising out of the accident. He noted, however, that sometimes
people do not have insurance coverage, and HB 40 would fill that
gap and ensure that they feel the impact of their actions.
MR. CARTER suggested that HB 40 should include language
indicating that a determination of whether something did or did
not contribute to an accident would not be admissible in a civil
action arising out of the accident. In other words, relatives
of a decedent should not be foreclosed, in a later civil action,
by a court determination that the violation did not contribute
to the accident. Conversely, if, during a license revocation
proceeding, the traffic violation was determined to have
contributed to the accident, that information should not be
admissible in a later civil action because it is a somewhat
vague finding. Both sides should be entitled to the present
civil system while stating their claims.
CHAIR ROKEBERG asked for further explanation from Mr. Carter on
the point of determination of causation.
MR. CARTER clarified that current Alaska law, based on an Alaska
Supreme Court case called Scott v. Robertson, says that unless a
violation is punishable by jail time, the fact that a citation
is issued at an accident is not admissible in a civil action.
This also applies to cases in which a fine is paid or a ticket
is contested and upheld. He said it would be hard to anticipate
what would happen during a license revocation hearing with
regard to protections offered or thoroughness of traffic-law-
violation analysis. He said he did not want to have something
found during a license revocation hearing to be binding on
either party.
Number 2140
CHAIR ROKEBERG said he interpreted Mr. Carter's explanation to
mean that the Alaska Supreme Court has determined, for example,
that should a person run a red light, cause the death of another
person, and be convicted of running the red light, the fact that
the person had run a red light would be admissible, but the fact
that he or she had been ticketed for running the red light would
not be admissible.
MR. CARTER agreed with that interpretation and added that the
person running the red light would also be found negligent per
se, in other words, automatically negligible for violating a red
light, in a civil action. He noted that anything having to do
with a citation in a [traffic] light situation would not be
admissible in a later civil trial, whether it was a red light or
a yellow light.
CHAIR ROKEBERG asked if Mr. Carter was suggesting that HB 40 was
drafted to allow culpability of license revocation to enter into
civil action, and thus would negate the ruling of the Alaska
Supreme Court.
MR. CARTER replied that it was perhaps just an abundance of
caution, based on what he does for a living. He saw a
possibility that someone, during a civil action, could argue
that due to a license revocation determination, a particular
issue had already been determined. He added that a higher court
or judge might not agree with that argument. He noted that
current statute specifically excludes admission of police
reports in determining civil cases arising out of an accident,
and along that line, he suggested including similar language in
HB 40. He used the following as an example of such language:
"The determination under this section shall not be admissible in
any civil action arising out of the accident."
Number 2029
ALBERT TAYLOR testified via teleconference. He said that his
only son was killed by a driver who had negligently crossed the
centerline and struck the car his son was in. He said that he
was led to believe that driving is a privilege; if a motor
vehicle operator chooses to drive irresponsibly, breaking
traffic laws and killing others, then his or her driving
privileges should be taken away. There are too many deaths on
Alaska's roads and highways brought on by negligence due to the
actions of careless and irresponsible drivers. He said that HB
40 would be a step towards holding such drivers accountable for
their actions. Also, HB 40 would encourage other drivers to be
more responsible. He asked that the committee pass HB 40 so
that Alaska's roads could be made safer for everyone.
CHAIR ROKEBERG expressed condolences on behalf of the committee
for the loss of Mr. Taylor's son. He went on to ask if the
driver that had crossed the centerline had been drinking, or if
there were other contributing factors.
MR. TAYLOR said that according to the accident report, the
testimony of witnesses, and the individual's own statement, the
driver was just in hurry - driving too fast - and lost control
of the vehicle. He was cited for careless driving and fined
$300.
Number 1892
MARY MARSHBURN, Director, Division of Motor Vehicles (DMV),
Department of Administration, testified via teleconference. She
said that HB 40 had no appreciable effect on the DMV because the
volume of incidents is relatively small. Under HB 40, the
revocation would be court-ordered and would not have a fiscal
impact on the DMV. Ms. Marshburn explained that it normally
takes approximately 30-45 days to receive a court's
determination of revocation; the delay is due to the fact that
there is not an electronic notification system set up.
REPRESENTATIVE MEYER inquired how a person got his or her
license back after the revocation period had ended.
MS. MARSHBURN responded that according to her interpretation of
HB 40, when the revocation period has expired, and if the
individual is eligible for "re-licensing", he or she would pay a
reinstatement fee; obtain special risk premium insurance (SR22),
which has to remain in effect for three years; take a vision
test; take a knowledge test; and pay a limited license fee. She
added that with regard to the limited license, the court could
impose any restrictions it deemed necessary for re-licensing of
the individual.
REPRESENTATIVE MEYER asked if a driver's test was also a
requirement for re-licensure.
MS. MARSHBURN said it would depend on the circumstances
surrounding the revocation. For instance, if someone suffered a
seizure, or had another medical condition, which was determined
to have contributed to the revocation, then more than just the
standard revocation process would be brought to bear, and that
could include the administration of a skills test. She added
that everyone, at one time or another, has driven a little
faster than was safe for the conditions, but that was not
necessarily something that could be remedied by a skills test.
She said the foregoing was the long answer; the short answer to
Representative Meyer's question was, "It would depend on what
led to the incident."
Number 1706
REPRESENTATIVE MEYER said he supported HB 40 because if someone
dies because of careless driving, there should be punishment.
He added, however, that if there is an underlying driving
problem, then license revocation might not correct that problem;
at the end of the revocation period, the person would be back
causing the same mistakes again. He said that he would like to
see a little more attention given to correcting a driving
deficiency, if possible. He also questioned what the penalty
would be if someone with a revoked license continues to drive,
as he has seen happen with DWI offenders.
MS. MARSHBURN responded that it depends on what the individual
was picked up for originally. Normally, if the charge is
driving with a revoked or suspended license, an additional
revocation period is administered in addition to any court
penalties. She noted that Mr. Guaneli would have more specifics
on the court penalties.
REPRESENTATIVE COGHILL sought assurance that any underlying
driving problems would be corrected before a license is returned
to someone who caused a death.
MS. MARSHBURN said she thought it would be taken care of.
First, the state has the latitude to examine a specific
situation if there is any indication in the officer's report or
the court record that that kind of a problem exists. And
Second, when there is a traffic fatality, both the investigating
officer and the court take a thorough look at all the details
during the investigation and the court case. Ultimately, a
reason has to be found which contributed to the fatality. She
again said that the court has the latitude to do whatever it
deems necessary in these types of situations.
Number 1531
MS. MARSHBURN, at the request of Chair Rokeberg, explained the
difference between a suspension and a revocation. She said that
the difference usually relates back to the offense and the time
period in which it occurred. Minor point violations can result
in suspension, but if too many point violations occur within a
certain amount of time, then a revocation could be imposed. In
cases of serious offenses - for example, in all instances
involving DWI - it is a revocation, not just a suspension.
CHAIR ROKEBERG commented that Representative Ogan had raised an
interesting point regarding serious physical injuries. On
another point, Chair Rokeberg asked Mr. Guaneli if, when
considering HB 40 and the issues it raised, the department had
also considered the concept of a criminal definition of falling
asleep while driving.
MR. GUANELI said that the department had not considered creating
a criminal definition of falling asleep while driving.
CHAIR ROKEBERG noted his interest was due to the growing amount
of fatalities caused by driving while fatigued. He added that
he thought it was becoming as rampant a problem as DWI.
REPRESENTATIVE OGAN commented that the use of cell phones while
driving was also becoming a contributing factor in traffic
fatalities.
Number 1389
CHAIR ROKEBERG announced that the public hearing on HB 40 would
be kept open, and he encouraged Representative Ogan to
investigate some of the aforementioned issues. [HB 40 was held
over.]
The committee was at-ease from 2:25 p.m. to 2:29 p.m.
HB 119 - PUBLIC UTILITY JOINT ACTION AGENCIES
Number 1315
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 119, "An Act exempting joint action agencies
from regulation by the state or municipalities; relating to the
relationship between a joint action agency and the public
utilities that form the joint action agency; relating to powers
and immunities of a joint action agency; requiring filing of the
joint action agency agreement; relating to the financial affairs
of a joint action agency; declaring certain joint action
agencies to be political subdivisions for certain purposes;
relating to liability and indemnification of officers,
employees, and agents of joint action agencies; and defining
'agency agreement' as used with reference to joint action
agencies." [Before the committee was CSHB 119(L&C).]
Number 1298
REPRESENTATIVE PEGGY WILSON, Alaska State Legislature, sponsor,
explained that HB 119 was a technical cleanup of last year's
legislation that created the Power Cost Equalization (PCE)
Endowment and authorized the sale of the Four Dam Pool project.
She submitted an amendment that contained changes recommended by
the Department of Law.
Number 1178
BRIAN BJORKQUIST, Assistant Attorney General, Governmental
Affairs Section, Civil Division (Anchorage), Department of Law
(DOL), testified via teleconference and explained the proposed
amendment. He mentioned that his primary client agency was the
Alaska Energy Authority (AEA). The proposed amendment [later
adopted as Amendment 1] read as follows [original punctuation
provided]:
Page 3, line 15:
Following "utility" insert "or the state"
Page 3, line 18:
Following "utility" insert "or the state"
Page 3, line 30:
Following "(5)" insert "in addition to the powers
of eminent domain in AS 42.05.631,"
Page 3, line 31:
Following "materials" insert "within the
boundaries of the power project purchased by the
agency from the Alaska Energy Authority"
Page 4, line 1:
Following "agency" delete "within the boundaries
of the power project purchased by the agency from the
Alaska Energy Authority"
MR. BJORKQUIST went on to say that the changes encompassed in
the amendment consisted of two different categories. The first
category of changes, found on page 3, lines 15 and 18, would
clarify the purpose of [Section 6], which stipulated that the
Joint Action Agency (JAA) was a separate legal entity
responsible for its own debt and liability. Current language
expressly excludes public utilities from being responsible for
liabilities, and the proposed amendment would include the state
in the exclusion. He added that though the amendment was
perhaps excessively cautious, [the DOL] wanted it clarified that
the state would not be responsible for the liabilities of the
JAA. He pointed out that Section 6, subsection (c), paragraph
(4), expressly referred to the state with regard to a debt
obligation of the JAA, and said that the concern was that the
language would be construed to mean the legislature intended to
obligate the state in earlier text.
Number 1010
MR. BJORKQUIST explained that the second category of changes
found on page 3, lines 30 and 31, and continuing on through page
4, line 1, would clarify the powers of eminent domain and
declaration of taking for the JAA. Currently the JAA has the
powers of eminent domain but lacks the power of the declaration
of taking. The Four Dam Pool public utilities had requested an
express provision for the declaration of taking because it would
help convince the Internal Revenue Service (IRS) that [the JAA]
was a tax-exempt entity. Mr. Bjorkquist also explained that
declaration of taking was a subset of eminent domain powers;
declaration of taking allowed the party to the taking to take
possession of the property prior to the end of the eminent
domain litigation process. He added that the amendment intended
to limit the power of declaration of taking, but not the power
of eminent domain, to the boundaries of the power project. He
clarified that the amendment would not affect the powers of
eminent domain of the JAA already provided for in AS 42.05.631.
MR. BJORKQUIST, in response to questions from Chair Rokeberg,
said that the boundaries of the power project referred to the
physical, geographic boundaries of the project. These
boundaries would primarily be defined by the Federal Energy
Regulatory Commission (FERC) license. The one transmission line
that may fall outside of the FERC license would be defined by
the purchase-and-sale agreement between the AEA and the JAA. He
confirmed that all rights-of-way and premises were defined by
those documents. He also agreed that the right of eminent
domain in taking within the boundaries would be expanded to
create the taking power for tax purposes in addition to
maintaining the right of eminent domain to acquire rights-of-
way, if needed. One of DOL's intentions with the amendment was
to maintain the existing law that enabled JAA to have the power
of eminent domain outside the boundaries of the power project.
Number 0585
MICHAEL E. SCHRADER, Attorney at Law, AterWynne LLP, Counsel to
Four Dam Pool Project Management Committee, testified via
teleconference. He said that HB 119 was the result of extensive
work by the member utilities, the project management committee,
the Attorney General's office, and other interested parties who
are working to complete the sale of the Four Dam Pool. With the
enactment of the enabling legislation, the JAA was formed to
take the place of the state as the owner of the Four Dam Pool
Project. The JAA will sell power from the project, pursuant to
the existing sales agreement, to each of the five member
utilities.
MR. SCHRADER went on to say that during the course of the
negotiation and execution of the JAA agreement, a number of
issues arose. Many of those issues were resolved within the
terms and provisions of the JAA agreement, which is the document
that creates the JAA and defines the relationship of the member
utilities. However, some issues still needed to be addressed
through other means. He said that HB 119 was designed to
address all of those issues.
MR. SCHRADER said that the corrections and additions contained
in HB 119 would do essentially four things: first, provide a
basis from which to obtain clarification from the IRS on the
federal tax status of the JAA; second, confirm the tax status of
the JAA under state law; third, confirm the relationship between
the member utilities and the JAA as well as the liability of the
JAA; and last, define the scope of regulation by the Regulatory
Commission of Alaska (RCA) on the JAA.
MR. SCHRADER clarified that the provisions in HB 119 regarding
eminent domain or condemnation powers of the JAA pursuant to the
declaration of taking procedures were driven entirely by the
need to have the JAA characterized for federal tax purposes as
either a governmental unit or a political subdivision. He
explained that the IRS looks to see if an entity has the ability
to exercise a sovereign power when determining if that entity is
governmental in nature. The power of condemnation is deemed to
be a sovereign power; therefore, giving the JAA the appropriate
level of condemnation power is essential for treatment as a
governmental unit by the IRS. This treatment is also essential
to the success of the divestiture because it would enable the
JAA to operate on a tax-exempt basis. Another advantage would
be that the future sale or transfer of individual projects to
participating member utilities would not be subject to federal
tax laws.
Number 0080
MR. SCHRADER said, with respect to the state tax status of the
JAA, that the provisions in HB 119 confirmed that the JAA would
be exempt from state and local taxation, with the exception of
the electric cooperative tax, should the JAA engage in retail
sales of power in the future. He added that under the current
power sales agreement there are not any provisions for sale of
retail power, and the JAA currently does not intend [sell retail
power] upon becoming the owner of the project. He recapped that
the objective was to maintain the status quo in terms of the
treatment towards the JAA with regard to federal and state tax
purposes when the JAA replaces the state as the owner of the
project. A couple of other points Mr. Schrader wanted to touch
on were.... [Tape ends mid-sentence.]
TAPE 01-26, SIDE A
Number 0001
MR. SCHRADER continued, "... that obligations, debts, and
liabilities of the joint action agency [JAA] are solely those of
the joint action agency, that it is a separate and distinct
legal entity from the member utility which formed the agency."
He noted that this language is consistent with other limited
liability entities created under Alaska law, from public
entities, such as port authorities, to private entities, such as
corporations and limited liability companies. The language in
Section 6 makes it clear that "the joint action agency is a
separate and distinct legal entity" and, therefore, any claim
would only be against the JAA, not the member utilities.
Number 0127
MR. SCHRADER turned to the scope of regulation by the RCA of the
JAA. Under current Alaska law, the Power Sales Agreement
defines the rights of the member utilities and the price at
which power will be sold from the Four Dam Pool project to the
member utilities. The Power Sales Agreement is exempt from
review and approval by the RCA. He explained that in accordance
with HB 446, which was adopted last year, the exemption of the
Power Sales Agreement from the review and regulation of RCA was
extended to cover the assignment of the Power Sales Agreement to
the JAA upon the closing of the sale of the project by the state
to the JAA. However, that exemption only continues so long as
the JAA is indebted to the state for the purchase price of the
project.
MR. SCHRADER noted that as "we" went through AS 42 and worked
with the representative of RCA, it was determined that there was
an inconsistency in terms of the scope of regulation; it wasn't
clear where the JAA fits in the regulatory scheme. Therefore,
HB 119 creates consistency in the scope of the RCA's regulation.
In other words, the provision in HB 119 now provides that the
JAA is exempt from all RCA regulations with respect to the JAA's
ownership and operation of the Four Dam Pool project until the
indebtedness is paid in full. Once the indebtedness is paid in
full, the JAA would be subject to regulation by the RCA.
Number 416
MR. SCHRADER said that this was an overview of the provisions of
HB 119. Although these [corrections] are technical in nature,
these are essential corrections and additions to the enabling
legislation that was enacted last year. These [provisions] are
essential to the member utilities and their ability to proceed
with divestiture, as well as closure of the sale by the state to
the Four Dam Pool JAA. The proceeds from the sale of those
projects fund the PCE endowment. In response to Chair Rokeberg,
Mr. Schrader said that he has seen Assistant Attorney General
Brian Bjorkquist's suggested amendments, and he believes they
are appropriate.
CHAIR ROKEBERG reviewed the provisions of HB 119. He related
his understanding that HB 119 ensures that potential liabilities
are limited to the assets, which he surmised to be similar to a
limited liability [company] (LLC).
MR. SCHRADER agreed that [a JAA is similar to an LLC] in that it
is treated as a separate and distinct legal entity with both the
power to sue and be sued. He reiterated that any claim against
the entity would be limited to the assets of the entity, which
is also the case for an LLC, corporation, port authority, or
other entity authorized to be created under Alaska law.
Number 0433
CHAIR ROKEBERG continued his review of the provisions of HB 119
by saying that HB 119 speaks to the liability of the agency, its
tax-exempt bonding authority, and a clarification of the
exemptions of RCA regulations. Therefore, Chair Rokeberg
understood HB 119 to be an expansion of the powers of eminent
domain in order to clarify the safe harbor rules under federal
tax status. He asked if that is the primary thrust of HB 119.
MR. SCHRADER answered that is correct.
CHAIR ROKEBERG referred to Industrial Development Bonds (IDBs)
and asked if there is anything in HB 119 that would allow the
JAA to expand the scope of, or have any influence on, the
allocation for IDB bonds in Alaska. He related his
understanding that the JAA would have to compete with everyone
else.
MR. SCHRADER agreed with Chair Rokeberg's understanding.
The committee was at-ease from 2:57 p.m. to 2:58 p.m.
CHAIR ROKEBERG closed the public testimony on HB 119.
Number 0649
REPRESENTATIVE MEYER moved that the committee adopt Amendment 1
[text provided previously]. There being no objection, it was so
ordered.
Number 0682
REPRESENTATIVE MEYER moved to report CSHB 119(L&C) as amended
out of committee with the accompanying fiscal notes. There
being no objection, CSHB 119(JUD) was reported from the House
Judiciary Standing Committee.
ADJOURNMENT
Number 0690
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:00 p.m.
| Document Name | Date/Time | Subjects |
|---|