03/04/2002 01:13 PM House JUD

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* first hearing in first committee of referral
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ALASKA STATE LEGISLATURE HOUSE JUDICIARY STANDING COMMITTEE March 4, 2002 1:13 p.m. MEMBERS PRESENT Representative Norman Rokeberg, Chair Representative Jeannette James Representative John Coghill Representative Kevin Meyer Representative Ethan Berkowitz Representative Albert Kookesh MEMBERS ABSENT Representative Scott Ogan, Vice Chair COMMITTEE CALENDAR CONFIRMATION HEARINGS Board of Governors of the Alaska Bar William A. Granger - Anchorage Violent Crimes Compensation Board Leslie D. Bogda Wheeler - Wasilla Commission on Judicial Conduct Jeffrey M. Feldman - Anchorage - CONFIRMATIONS ADVANCED HOUSE BILL NO. 252 "An Act relating to the construction of certain statutes relating to children; relating to the scope of duty and standard of care for persons who provide services to certain children and families; and providing for an effective date." - MOVED CSHB 252(JUD) OUT OF COMMITTEE PREVIOUS ACTION BILL: HB 252 SHORT TITLE:STANDARD OF CARE FOR CINA SERVICES SPONSOR(S): REPRESENTATIVE(S)COGHILL Jrn-Date Jrn-Page Action 04/23/01 1136 (H) READ THE FIRST TIME - REFERRALS 04/23/01 1136 (H) HES 01/17/02 (H) HES AT 3:00 PM CAPITOL 106

01/17/02 (H) Heard & Held

01/17/02 (H) Committee 1AM KOHRING, WITNESS REGISTER WILLIAM A. GRANGER, Appointee to the Board of Governors of the Alaska Bar Anchorage, Alaska 99515 POSITION STATEMENT: Testified as appointee to the Board of Governors of the Alaska Bar. LESLIE D. BOGDA WHEELER, Appointee to the Violent Crimes Compensation Board (VCCB) PO Box 878885 Wasilla, Alaska 99687 POSITION STATEMENT: Testified as appointee to the Violent Crimes Compensation Board. JEFFREY M. FELDMAN, Appointee to the Commission on Judicial Conduct (CJC) Anchorage, Alaska 99501 POSITION STATEMENT: Testified as appointee to the Commission on Judicial Conduct. SUSAN COX, Chief Assistant Attorney General Civil Division (Juneau) Department of Law (DOL) PO Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: During discussion of 252. ACTION NARRATIVE TAPE 02-27, SIDE A Number 0001 CHAIR NORMAN ROKEBERG called the House Judiciary Standing Committee meeting to order at 1:13 p.m. Representatives Rokeberg, Coghill, Meyer, and Berkowitz were present at the call to order. Representatives James and Kookesh arrived as the meeting was in progress. CONFIRMATION HEARINGS Board of Governors of the Alaska Bar Number 0103 CHAIR ROKEBERG announced that the committee would consider William A Granger as appointee to the Board of Governors of the Alaska Bar. Number 0117 WILLIAM A. GRANGER, Appointee to the Board of Governors of the Alaska Bar ("the Board of Governors"), testified via teleconference. He mentioned that he is a lifelong Alaskan, raised and educated in Alaska; has been a banker all of his adult life, employed most recently by "National Bank of Alaska/Wells Fargo"; is currently in private practice making small consumer and larger commercial loans; has been active for many years in the "Anchorage bar community" in commercial-type transactions and bankruptcy transactions; and has friends and acquaintances who, over the years, have served on the Board of Governors of the Alaska Bar. MR. GRANGER noted that from these people he has received glowing recommendations regarding the Board of Governors' educational process, and its importance in maintaining the integrity and quality of the bar at large. He recounted that he's always been interested in seeing that "that" be kept to the highest standard possible. He noted that he has been active on the Board of Governors for the last six months since his initial appointment in June 2001; has attended two or three regular meetings; and has been involved in some of the Board of Governors' disciplinary matters, continuing education matters, and "planning meetings" for the Bar Association. He said he has made an effort to become familiar with what the Board of Governors does and how it operates, adding that his enthusiasm for his appointment has not waned at all. CHAIR ROKEBERG thanked Mr. Granger for volunteering to serve on the Board of Governors. After some discussion regarding the forms provided to the committee, Chair Rokeberg reminded members that signing the reports regarding appointments to boards and commissions in no way reflects individual members' approval or disapproval of the appointees, and that the nominations are merely forwarded to the full legislature for confirmation or rejection. Violent Crimes Compensation Board Number 0388 CHAIR ROKEBERG announced that the committee would consider Leslie D. Bogda Wheeler as appointee to the Violent Crimes Compensation Board. Number 0417 LESLIE D. BOGDA WHEELER, Appointee to the Violent Crimes Compensation Board (VCCB), testified via teleconference. She confirmed that she has served on the VCCB for a partial term and a full term, and is now up for reappointment for a second full term. She relayed that in the past she had worked with the Council on Domestic Violence and Sexual Assault (CDVSA) and some of the programs that it funds, and that she has devoted much of her professional life, for the last 20 years, to victims' services and victims' issues. MS. BOGDA WHEELER said that serving on the VCCB has been a very rewarding experience for her because the VCCB addresses the needs and issues of victims in many different circumstances. In addition to [issues of] sexual assault, domestic violence, and sexual abuse of children, the VCCB also addresses the entire spectrum of victims' compensation. She noted that she has been fortunate, as a member of the VCCB, to attend a national conference on victims' issues, and this has broadened her knowledge considerably. "With the unfortunate advent of terrorism in our country, I was glad to know that we had already addressed some of the issues involved there, so that we would be prepared, in Alaska, to provide those services; our policies reflect those concerns and that preparation," she added. MS. BOGDA WHEELER said that the VCCB does quite a bit of work and meets four times a year, and that its staff has done an incredible job of making sure that victims throughout Alaska receive the benefit of compensation for out-of-pocket expenses. She opined that the VCCB is doing a very important job for the people of Alaska, and stated that she is proud to serve on the VCCB and would enjoy continuing that service. CHAIR ROKEBERG asked for an example of the highest and lowest amounts of compensation that the VCCB has awarded, and for what circumstances those were made. MS. BOGDA WHEELER said that probably the lowest financial figure - for example, a few hundred dollars - would be for somebody who had some expenses related to going to a hospital, or who had out-of-pocket expenses for a few sessions of crisis counseling. The highest awards would be for cases where somebody has been tragically injured and their medical bills go far beyond anything that the VCCB has the resources to compensate for. The current high amount for an individual is $25,000, and for multiple-victim situations, the VCCB can award up to $40,000 for expenses that may in fact be into the hundreds of thousands of dollars. For a child who has lost his/her parent due to a violent crime, the VCCB would be able to pay $25,000, total, to that child, which, when considering what it costs to raise a child, is pretty much just a drop in the bucket, she added. "Those are opposite ends of the continuum, if you will, in terms of what we are able to award," she stated. CHAIR ROKEBERG asked whether, in making awards, the VCCB looks at other factors such as insurance, the victim's net worth, and other family assets. MS. BOGDA WHEELER said yes; the VCCB is the "payer of last resort," so all other ability-to-pay avenues are exhausted before the VCCB pays anything on any given aspect of a claim. CHAIR ROKEBERG thanked Ms. Bogda Wheeler for serving on the VCCB. Commission on Judicial Conduct Number 0800 CHAIR ROKEBERG announced that the committee would consider Jeffrey M. Feldman as appointee to the Commission on Judicial Conduct. Number 0837 JEFFREY M. FELDMAN, Appointee to the Commission on Judicial Conduct (CJC), testified via teleconference. After noting that he is up for reappointment to the CJC for a third term, he explained that the CJC is responsible for enforcing the code of judicial ethics and making recommendations to the [Alaska] Supreme Court regarding disciplining judges who have violated that code. He said he has resided in Alaska since 1975 and is a lawyer in private practice - predominately a trial and appeal practice with a mixture of civil cases. MR. FELDMAN said the CJC fulfills an essential role in the judicial system by ensuring the integrity of the process. He explained that the staff of the CJC receives and reviews a large number of grievances and complaints each year, after which the CJC also reviews them and then holds hearings where appropriate in order to make findings and recommendations. He offered that during the time that he has served, the CJC has been carrying out its work in a more timely fashion, the caseload is much more current, and the response to concerns and complaints has improved. MR. FELDMAN noted, however, that there is always tension between rules that keep certain matters at certain stages of the investigation confidential and the desirability of having an open process that is available to the public. He elaborated: We operate under rules that are established both internally and by statute, and we've attempted to strike that balance - I think reasonably well. And Alaska currently has one of the most open systems of judicial discipline in the country, which I happen to personally think is highly desirable, and if it were up to me personally, I'd probably be happy to make it even more open. CHAIR ROKEBERG asked for an example of a typical complaint that the CJC receives. MR. FELDMAN explained that the typical complaint is usually one that does not fall within the jurisdiction of the CJC; a typical complaint often comes [from] a prisoner in jail, or sometimes from a dissatisfied litigant - frequently in a domestic matter - who has a disagreement with a decision that's been made by the judge. Unhappy litigants account for a lot of the complaints that the CJC receives but lacks the authority to review. Of the complaints that the CJC receives that are within its jurisdiction, a significant number fall into the category of judicial demeanor, which is how judges behave and treat people. Number 1048 MR. FELDMAN noted that the cases that have prompted actual "positions and discipline" have been instances of judges crossing the line and engaging in actions that are beyond the scope of their authority, using judicial power in a way that is found to be improper, and generally conducted themselves in a way that is inconsistent with the cannons of judicial ethics. For example, a judge who was found to have bypassed the normal procedures for appointing someone into a coroner position, and a judge who was found to have used the "intent power" in an improper fashion. Demeanor and use of power, he noted, are the two main categories that complaints fall into, although there are few complaints of judicial misconduct that rise to a serious level; most complaints are simply from unhappy litigants who don't like what happened to them during the judicial process. CHAIR ROKEBERG asked whether the CJC is responsible for "grading for retention." MR. FELDMAN explained that the Alaska Judicial Council (AJC) is the body responsible for retention issues and screening applicants for appointment to the bench, not the CJC. The CJC's mission is solely limited to judicial discipline, he added. CHAIR ROKEBERG asked whether there is any communication between the AJC and the CJC regarding retention. MR. FELDMAN replied: There is in the sense that there is a rule that requires that if a judge is up for retention and is currently the subject of a "conduct commission proceeding," certain notification of that proceeding has to be made to the [AJC] so that they can evaluate it and determine whether it bears on the judge's fitness for retention. CHAIR ROKEBERG thanked Mr. Feldman for his public service. MR. FELDMAN remarked that he has always considered it an honor to serve on the CJC. Number 1263 CHAIR ROKEBERG noted that there were no objections to forwarding the reports regarding the appointments of: William A. Granger to the Board of Governors of the Alaska Bar, Leslie D. Bogda Wheeler to the Violent Crimes Compensation Board, and Jeffrey M. Feldman to the Commission on Judicial Conduct. Therefore, the confirmations were advanced. HB Number 1296 CHAIR ROKEBERG announced that the last order of business would be HOUSE BILL NO. 252, "An Act relating to the construction of certain statutes relating to children; relating to the scope of duty and standard of care for persons who provide services to certain children and families; and providing for an effective date." [Before the committee was 252 greater parental participation with regard to children-in-need- of-aid (CINA) discussions. It establishes a pilot program regarding intensive family services, and, with regard to section 7, HB being exempted from [AS] 47.10. He noted that this exemption is what actually began the whole discussion that resulted in the creation of HB forward was [that] I wanted a little higher degree of accountability in the Department [of Health & Social Services (DHSS)] under [AS] 47.10," he added. REPRESENTATIVE COGHILL noted that although the [DHSS] actually has "pretty good levels of care," he wanted to tie it to statute. He noted, however, that placing all of the duties and standards of care that the [DHSS] currently follows would create "about a 50-page bill." In addition, although the [DHSS] is under a lot of pressure to perform its duties with fewer resources, Representative Coghill said he would still like to at least provide for departmental accountability and for some form of civil liability. He pointed out that the [DHSS] has been given quasi police and judicial powers, and so should be held accountable for its actions under AS 47.10, much like the requirement of law enforcement to read a person his/her "Miranda rights." Number 1520 REPRESENTATIVE COGHILL explained that the Department of law suggested the current language in Section 7 of HB authority, to encourage families to participate in child-in- need-of-aid [solutions], to provide for a "family preservation service," and to address the issue of civil liability pertaining to [DHSS] actions. He remarked that he objects to the fact that there is no "standard and duty of care" in statute. REPRESENTATIVE COGHILL mentioned that he has a couple of amendments to suggest, one of them being merely a technical amendment. CHAIR ROKEBERG surmised, then, that the goal of AS repealed in its entirety, it begs the question of what the legislature's intent is in doing that. Is it the legislature's desire to open the door for new arguments about liability based on the CINA laws? Is that the intent? Or is it just that the words that are in the statute are offensive or somehow misleading to the public? Unfortunately, as a defense attorney, she said, she can envision new suits, or new theories raised in existing suits, that if this language were repealed, then some provision in the CINA law, if not followed to a "T," would become a new theory of liability, and the attorney general's office would end up arguing whether it was the legislature's intention to create new liabilities. Therefore, since it was the DOL's understanding that the reference to a standard of care was the problem, the DOL suggested some alternative language that did not speak in terms of standard of care. MS. COX explained that the new language proposed in Section 7 of HB 252 was just what the House Health, Education, and Social Services Standing Committee chose to insert in its committee substitute (CS). There are certainly other ways that it could be said, she noted, but if AS 47.10.960 is repealed altogether without some substitute language, she expected a fiscal impact in her office. REPRESENTATIVE BERKOWITZ wanted clarification on whether, under the existing statute, suits have been initiated and, therefore, people who feel that the [DHSS] has wronged them do have access to the courts. MS. COX said that is true, but it is primarily for people who believe that children have been harmed, either from being placed in foster care that was not appropriate - not safe - or from not being placed in foster care at all. At this point, she explained, the parents who do not like the way the process has handled things do not necessarily have a right of recourse for themselves; the current lawsuits maintain that the children have been negligently harmed as a result of the [DFYS's or the DHSS's] actions. Therefore, she said, she would not say that the DOL has ongoing litigation involving parent's allegations that they have somehow been aggrieved; the current cases pertain to failing to protect children. Number 2251 MS. COX, in response to a question regarding the standard prior to the enactment of AS 47.10", noted that what the legislature is trying to do via these statutes is protect children, but at the same time, he opined, the statute is specifically saying that nothing is created that guarantees responsibility on the part of the [DHSS]. He asked Ms. Cox to explain to him why this [or similar] language should remain in statute. MS. COX, in response, reiterated that the term "does not create a duty or standard of care" is a term of art [pertaining to] civil liability, and that the intention was to maintain the status quo. Liability is still possible. This [language] does not create an immunity, and it was part of the whole package that was enacted four years ago during a comprehensive revision of the statutes. REPRESENTATIVE MEYER asked Representative Coghill if he feels that by allowing for civil liability, it's going to "change anything that's currently going on." He offered that it may just add more expense [to the state]. REPRESENTATIVE COGHILL posited that if the language is removed, "then all's we're doing is creating 'what if' really not creating a greater liability." However, if the current statutory language is retained, he added, "then there's a lot of 'what if' taken away from parents, because we're saying that there's nothing in this title that creates a duty or standard of care for services to children or their families." CHAIR ROKEBERG mentioned that sometimes the use of terms of art can create confusion regarding the common meaning of words. REPRESENTATIVE BERKOWITZ proffered that what Representative Coghill is saying is that he wants some affirmative statement that a duty or standard of care exists, and that what the DOL is saying is that they would prefer that it arise under some different provision of law than AS Or, that it [already] does arise under some different [provision]? Number 2366 MS. COX said that the DOL would be perfectly content - not happy, but perfectly satisfied - to have liability remain a question of the common law breach of reasonable care - the standard negligence test - and not be a question of statutory causes of action or, arguably, statutorily created causes of action. REPRESENTATIVE COGHILL indicated agreement with Representative Berkowitz's assessment. "That's where I'm try to get something that'll help us bridge this very gap," he added. REPRESENTATIVE BERKOWITZ asked whether language such as "the duty or standard of care for services to children and their families being served does not arise under AS because it is not presumed that the legislature, in regulating all manner of legal situations in this state, intends to create liabilities. MS. COX said that with AS 47.10? MS. COX mentioned that had the language never been inserted, perhaps there would not be any need for the current discussion; however, since the language is part of current statute, repeal of that language raises the question of legislative intent. She noted that the proposed substitute language found in Section 7 is an attempt to maintain the status quo while removing the language that Representative Coghill finds so offensive. REPRESENTATIVE BERKOWITZ said: So, in essence, the duty or standard of care that exists currently derives from the common law. Is that correct? MS. COX said yes. REPRESENTATIVE BERKOWITZ asked: Why don't we just say that? Would that be okay? REPRESENTATIVE COGHILL said he thought that by repealing the language altogether, the legislature would be saying that. REPRESENTATIVE BERKOWITZ suggested stating that specifically: "The duty or standard of care for services to children and their families being served derives from the common law." Number 2110 MS. COX said that would certainly be fine with her. Since "we've" already said that it doesn't create a duty, helpful to say that it derives from the common law, and doing so would maintain the status quo. CHAIR ROKEBERG indicated agreement. He also expressed concern with the use of the words "Failure to comply with a provision of this title...." He asked why all of AS proposed substitute language for Section 7. MS. COX suggested that perhaps it is because AS 47 and that if the language offered by Representative Berkowitz were adopted, she would not anticipate having problems elsewhere in AS 47 because of that change. CHAIR ROKEBERG reiterated that it troubles him to have that reference there. REPRESENTATIVE BERKOWITZ suggested that "under AS 47.10" could be added to the language he previously suggested. CHAIR ROKEBERG asked whether the reference to common law would apply to both the [DHSS} and anybody else who was statutorily deemed to have responsibility [over children] - such as a foster parent. MS. COX surmised that it would apply to anybody who is affected by AS 47.10 in statutes. REPRESENTATIVE COGHILL asked what would be changed by stating that the duty or standard of care derives from common law if, currently, individuals have recourse under common law on issues of liability. MS. COX said it changes nothing except for removing the potential argument that the legislature intended to create new liabilities. CHAIR ROKEBERG mentioned that the heading for AS legislature intends to express its recognition that parents possess inherent individual rights", et cetera. Well sir, all it says in that [AS] 47.10.005 is that ... the [DHSS], apparently, can liberally construe the provisions of this chapter so that [the child coming within the jurisdiction] may receive the care, guidance, treatment that will promote the child's welfare and the parents participation in the child's upbringing. Mr. Chairman, we need to do something to correct the problem where the parents' authority to be responsible and to direct and control the education and upbringing of their own children is what we have in law, not simply that the [DHSS] as at liberty to involve or decide what participation is or make any other of these types of judgments, based on whatever the prerogatives of the [DHSS] are. Now, there are many of us who understand that the activities of the [DHSS] are motivated by a progressive, understanding, ... realization that children do need to be protected, and that there are very important social issues there. But what is consistently missed is the fact that while we say that, what we're doing is, we're stripping parents of authority and stripping children of their parents and their families. The very support network that we say is important to children is consistently eroded by these laws that we have. Number 1132 MR. CALDER concluded: I guess just to kind of sum up, I'm not satisfied with the amendment process of this bill. Now, I would defer [to] Representative Coghill's judgment on it, but I would think that we would be dangerously close, here, to creating a worse problem than we already have. So I would hope that there would be some questions, because I can certainly answer them. CHAIR ROKEBERG asked Mr. Calder if he supported HB 375, one best interests of the child"; so if the main goal is to assist children, "we need to be consistent with the use of that phrase." He observed that the best interests of the child may not be the same thing as the child's welfare. REPRESENTATIVE COGHILL indicated that such a change would be appropriate. He mentioned that page 2, line 1 also includes the addition of the term "and the parents' participation in the child's upbringing". REPRESENTATIVE BERKOWITZ noted that by having "welfare" and "parents' participation" the courts are things. Therefore, he suggested, the language should be changed to say "best interests [of the child], including the parents' participation in the child's upbringing". Thus, he opined, the court would know that it should focus first on the best interests of the child and that then parental participation should figure prominently. REPRESENTATIVE COGHILL surmised, then, that Representative Berkowitz is suggesting replacing "and" with ", REPRESENTATIVE BERKOWITZ said yes; if "and" is used, the courts are being told to do two things, as opposed to having a hierarchy of responsibilities, as would be the case if using ", including". In this way, the courts would have discretion with regard to whether including the parents' participation is in the child's best interest, which would be the priority. Number 0625 REPRESENTATIVE SHARON CISSNA, Alaska State Legislature, commented that sometimes it is desirable to include the parent in a child's life, but from a distance. Currently, however, the trend is to exclude the parent completely. She mentioned that other states are including the parent in the child's life even after the child is no longer in the parent's custody. CHAIR ROKEBERG commented that sometimes children are better off with their foster parents than with their biological parents. REPRESENTATIVE CISSNA said that although that is true, [Representative Berkowitz's suggested language change] would not affect those situations. Number 0467 REPRESENTATIVE BERKOWITZ restated his suggested language change: page 2, line 1, delete "child's welfare and" and interest of the child, including". Number 0387 CHAIR ROKEBERG, calling the aforementioned proposed change Amendment 3, asked whether there were any objections to adopting it. There being no objection, Amendment 3 was adopted. Number 0362 REPRESENTATIVE COGHILL moved to report 252(JUD) Committee. ADJOURNMENT Number 0321 There being no further business before the committee, the House Judiciary Standing Committee meeting was adjourned at 2:43 p.m.

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