Legislature(2003 - 2004)
04/09/2003 01:40 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 9, 2003
1:40 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 249
"An Act relating to actions involving monopolies and restraint
of trade; and providing for an effective date."
- MOVED CSHB 249(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 164
"An Act relating to the state's sovereign immunity for certain
actions regarding injury, illness, or death of state-employed
seamen and to workers' compensation coverage for those seamen;
and providing for an effective date."
- MOVED HB 164 OUT OF COMMITTEE
HOUSE BILL NO. 92
"An Act relating to reports by members of the clergy and
custodians of clerical records who have reasonable cause to
suspect that a child has suffered harm as a result of child
abuse or neglect."
- MOVED CSHB 92(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 24
"An Act relating to intergovernmental agreements regarding
management of fish or game."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 249
SHORT TITLE:RESTRAINT OF TRADE: FEES AND COSTS
SPONSOR(S): REPRESENTATIVE(S)MCGUIRE
Jrn-Date Jrn-Page Action
04/04/03 0787 (H) READ THE FIRST TIME -
REFERRALS
04/04/03 0787 (H) JUD
04/09/03 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 164
SHORT TITLE:CLAIMS BY STATE-EMPLOYED SEAMEN
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
03/05/03 0435 (H) READ THE FIRST TIME -
REFERRALS
03/05/03 0435 (H) L&C, JUD, FIN
03/05/03 0435 (H) FN1: ZERO(ADM)
03/05/03 0435 (H) GOVERNOR'S TRANSMITTAL LETTER
03/14/03 (H) L&C AT 3:15 PM CAPITOL 17
03/14/03 (H) <Bill Hearing Postponed>
03/31/03 (H) L&C AT 3:15 PM CAPITOL 17
03/31/03 (H) Moved Out of Committee
MINUTE(L&C)
04/02/03 0732 (H) L&C RPT 1DP 5NR
04/02/03 0732 (H) DP: ROKEBERG; NR: LYNN,
GATTO,
04/02/03 0732 (H) CRAWFORD, GUTTENBERG,
ANDERSON
04/02/03 0733 (H) FN1: ZERO(ADM)
04/02/03 0733 (H) FN2: (LWF)
04/02/03 (H) JUD AT 1:00 PM CAPITOL 120
04/02/03 (H) Scheduled But Not Heard
04/07/03 (H) JUD AT 1:00 PM CAPITOL 120
04/07/03 (H) Heard & Held
MINUTE(JUD)
04/09/03 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 92
SHORT TITLE:CLERGY TO REPORT CHILD ABUSE
SPONSOR(S): REPRESENTATIVE(S)LYNN
Jrn-Date Jrn-Page Action
02/12/03 0186 (H) READ THE FIRST TIME -
REFERRALS
02/12/03 0186 (H) STA, HES
02/19/03 0257 (H) COSPONSOR(S): KERTTULA
03/06/03 (H) STA AT 8:00 AM CAPITOL 102
03/06/03 (H) Heard & Held
03/06/03 (H) MINUTE(STA)
03/18/03 (H) STA AT 8:00 AM CAPITOL 102
03/18/03 (H) Moved CSHB 92(STA) Out of
Committee
MINUTE(STA)
03/24/03 0622 (H) JUD REPLACES HES REFERRAL
03/26/03 0633 (H) STA RPT CS(STA) NT 5DP 1NR
1AM
03/26/03 0633 (H) DP: GRUENBERG, SEATON, HOLM,
LYNN,
03/26/03 0633 (H) DAHLSTROM; NR: WEYHRAUCH; AM:
BERKOWITZ
03/26/03 0633 (H) FN1: ZERO(HSS)
03/26/03 0633 (H) FN2: ZERO(LAW)
03/26/03 0633 (H) REFERRED TO JUDICIARY
04/02/03 (H) JUD AT 1:00 PM CAPITOL 120
04/02/03 (H) Heard & Held
MINUTE(JUD)
04/07/03 (H) JUD AT 1:00 PM CAPITOL 120
04/07/03 (H) <Bill Hearing Postponed to
Wed. 4/9/3>
04/09/03 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JEFFREY M. FELDMAN, Attorney
Feldman & Orlansky
Anchorage, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 249
and responded to questions.
TOM BRIGGS, Director
Marine Operations
Central Office
Alaska Marine Highway System (AMHS)
Department of Transportation & Public Facilities (DOT&PF)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 164 and
responded to questions.
J. LYNN MELIN, Port Captain
Central Offices
Alaska Marine Highway System
Department of Transportation & Public Facilities (DOT&PF)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
164.
JAMES P. JACOBSEN, Attorney at Law,
Beard Stacey Trueb & Jacobsen, LLP
Seattle, Washington
POSITION STATEMENT: Provided comments during discussion of HB
164.
SUSAN COX, Chief Assistant Attorney General
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 164.
KEVIN JARDELL, Assistant Commissioner
Office of the Commissioner
Department of Administration
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
164.
RICHARD BLOCK, Representational Lobbyist
for Christian Science Committee on Publication for Alaska
Anchorage, Alaska
POSITION STATEMENT: Testified during the hearing on HB 92.
FLOYD SMITH, Consultant
Alaska District Council of the Assemblies of God
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
92.
REPRESENTATIVE BOB LYNN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 92.
WILLIAM MOFFATT, Staff
to Representative Bob Lynn
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided a comment during the hearing on HB
92.
CHIP WAGONER, Lobbyist
for the Alaska Catholic Conference
Juneau, Alaska
POSITION STATEMENT: Provided a comment during the hearing on HB
92.
JUSTIN ROBERTS, Staff
to Representative Max Gruenberg
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided a comment during the hearing on HB
92.
ACTION NARRATIVE
TAPE 03-34, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:40 p.m. Representatives
McGuire, Holm, Ogg, Samuels, Gara, and Gruenberg were present at
the call to order. Representative Anderson arrived as the
meeting was in progress.
HB 249 - RESTRAINT OF TRADE: FEES AND COSTS
Number 0043
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 249, "An Act relating to actions involving
monopolies and restraint of trade; and providing for an
effective date."
CHAIR McGUIRE posited that HB 249 is a clarifying bill. She
relayed that Civil Rule 82(a) of the Alaska Rules of Civil
Procedure says, "Except as otherwise provided by law or agreed
to by the parties, the prevailing party in a civil case shall be
awarded attorney's fees calculated under this rule." Thus, she
surmised, the philosophy has been that the prevailing party may
recover its fees, adding that [HB 249] will make it absolutely
clear that this same policy also applies with regard to
antitrust cases. She mentioned that the legislature has not yet
spoken clearly on this issue; under current statutory language,
there is only reference to successful plaintiff recovery.
Therefore, HB 249 is intended to clarify, and state expressly,
that the successful antitrust defendant has the right to recover
partial attorney fees.
CHAIR McGUIRE noted that the legislature has already spoken
similarly in the area of unfair trade practices and consumer
protection - specifically in AS 45.50.537(b) - which states in
part that, "a prevailing defendant shall be awarded attorney
fees and costs as provided by court rule." She pointed out that
HB 249 has an immediate effective date, and remarked that
although she generally tries to "stay away from immediate
effective dates," when clarifying an existing policy she
believes it is appropriate to have an [immediate] effective
date. "If we are going to speak, we should speak firmly,
clearly, and immediately," she added.
Number 0322
JEFFREY M. FELDMAN, Attorney, Feldman & Orlansky, remarked that
the legislature, in AS 45.50.576, has already stated that if a
plaintiff proves that an antitrust violation is wilful, then
that prevailing plaintiff can recover actual attorney fees,
rather than just the partial fees that [Rule 82] gives a
prevailing party. He opined that a commonsense reading of that
statute would lead a person to conclude that the general rules -
the ordinary rules of Rule 82 - would apply to either a
prevailing plaintiff or a prevailing defendant, and that a
plaintiff that proves a wilful violation collects full fees. He
noted, however, that the courts are not of one mind on this
issue; he said that some judges would read that statute as
displacing Rule 82 entirely, concluding that because the statute
only awards prevailing plaintiffs fees, it is thereby intended
to deprive prevailing defendants of any [attorney fees]
reimbursement. He opined that a reading of that statute does
not logically lead to such a conclusion.
MR. FELDMAN posited that the purpose of HB 249 is to clarify
that in enacting the aforementioned provision giving prevailing
plaintiffs full [attorney] fees, the legislature did not intend
to strip other prevailing parties of partial fee entitlements.
He relayed that he is currently "defending one of the fish
processors in the antitrust case that's presently being
litigated in Anchorage." He said that "this issue" arose a
couple of years ago when the processors prevailed on summary
judgment and the trial court gave [his party] a signal that it
would likely read the current statute as displacing Rule 82. He
noted that this issue was never resolved because the grant of
summary judgment in favor of the processors was reversed on
appeal, and so his party has been "sent back for trial." He
said that if his party were to ultimately prevail, under the
trial court's current reading of the statute, his client would
not be entitled to recover any attorney fees. He opined that
this would be contrary to what was intended by the statute.
MR. FELDMAN, in closing, said that it is not his intention, in
proposing the concept of HB 249, to change the law, but rather
to simply clarify [legislative intent] and spare his clients the
burden of having to go through another two-year process of
appeal.
Number 0625
REPRESENTATIVE GRUENBERG suggested that rather than amend AS
45.50.576 by adding a subsection (c) - as is proposed by HB 249
- it might be better to amend (a)(1) of that statute by adding,
after "person", the phrase "the prevailing party shall also be
awarded the cost of the suit plus reasonable [attorney] fees
according to court rule".
MR. FELDMAN acknowledged that doing such would be an alternate
way of approaching "this problem." He mentioned, however, that
that would have the effect of "deleting, from [AS 45.50.576],
the ... provision that would grant an award of full reasonable
fees to prevailing plaintiffs for wilful violations."
REPRESENTATIVE GRUENBERG surmised, then, that the court reads
"reasonable [attorney] fees" as "full reasonable [attorney]
fees."
MR. FELDMAN indicated that that is correct.
REPRESENTATIVE GRUENBERG asked Mr. Feldman whether it is his
intention, with HB 249, to have the courts award full reasonable
attorney fees to defendants as well.
MR. FELDMAN said no, just Rule 82 fees.
REPRESENTATIVE GRUENBERG suggested, then, that AS
45.50.576(a)(1) be amended to say, "including full reasonable
[attorney] fees". "Let's add the word 'full' in there, so
they'll understand what we're doing," he remarked.
MR. FELDMAN said, "That may be granting us more than what I'm
asking for."
REPRESENTATIVE GRUENBERG indicated that it would not, and
clarified that in addition to the change proposed by HB 249, his
latest suggestion would be to also amend AS 45.50.576(a)(1) by
adding the word "full" before "reasonable".
MR. FELDMAN, in response, said his only goal is to ensure that a
prevailing defendant is given Rule 82 fees.
Number 0847
REPRESENTATIVE GARA opined that [Representative Gruenberg's]
suggestion would be creating mischief with the statutes. He
elaborated:
There are a number of provisions where the State of
Alaska has decided that certain cases are so
important, and the attorney general's office doesn't
have the presence to file these cases, that we want to
encourage people to be able to find private counsel.
And, so, in the consumer protection area, the
antitrust area, there are provisions in there that
provide for full [attorney] fees in recognition that
the State of Alaska doesn't have the presence to take
all of these cases that ... people would need them to
take. And sometimes we refer to the full [attorney
fees] provision as a reasonable [attorney fees]
provision in the statute, [and] sometimes we use the
word "full".
My worry is, by changing "reasonable" to "full", that
might imply, in all the other places in the statutes
where we use the term "reasonable", that that doesn't
mean full. And the term "reasonable [attorney] fees"
has always been interpreted by the court to mean
"full" - they understand what it means - I just don't
think we need to ... change the wording of the statute
at all. This follows the federal antitrust statute,
which does the same thing.
REPRESENTATIVE GRUENBERG offered his understanding that at the
federal level, since this is the same as federal law, it is
interpreted as "full".
REPRESENTATIVE GARA affirmed that. Indicating he'd discussed it
earlier that day with Mr. Feldman, he then brought up removing
the immediate effective date. Representative Gara said he had
no problem with the substance of the bill and was pretty
confident that it accurately stated existing law and the way it
should have been interpreted by the trial court in this case.
He said he wasn't 100 percent comfortable, however, because he
hadn't read every single case; he suggested the courts would
have more insight in that area. He asked whether adopting the
bill without Section 3 would have an impact as this case wends
it way through the courts, and whether the courts would look at
"our act in clarifying existing law as evidence of the meaning
of existing law."
MR. FELDMAN responded that if Section 3 were removed, the
consequence for the currently pending Bristol Bay antitrust case
would be that the proposed legislation would become effective 90
days after enactment; given how protracted the case has become,
it is possible that the bill could be enacted without Section 3
and it still would apply to this case by the time final judgment
is entered. He expressed doubt, therefore, that the immediate-
effective-date provision controls whether this law is going to
apply to this case. He also said he believes the court would
still be obliged to consider the enactment "as an indication of
how the statute, even before the enactment, should have been
considered." He explained:
If ... the legislature says, "This is a clarification
and this is what the prior statute was intended to
mean," I would like to think that the court would give
that enactment appropriate deference and would weigh
it and consider it. Now, courts do lots of things,
and ... we'd have to wait and find out. ... I'll be
candid and say that part of my motivation for being
here is just to avoid the uncertainty and the cost and
the delay of running that risk. But ... I understand
your concern about it. ... If I thought that this was
a substantive change in the law, it would trouble me
more. But I really just think ... that it clarifies
and makes explicit what I think was obviously intended
when the statute was enacted originally.
Number 1128
REPRESENTATIVE GARA said he thought he largely agreed and didn't
believe it was a substantive change in the law. However, he
acknowledged the need to analyze all the cases in order to be
able to speak for sure. With regard to legislative intent, he
offered his belief that this bill is consistent with the intent
of the statutes, "even before it gets changed." He informed
members that at some point during the hearing he would move to
delete Section 3.
REPRESENTATIVE OGG asked whether Mr. Feldman was aware of any
antitrust cases in which the defendants prevailed in Alaska
under Rule 82, and what the results were.
MR. FELDMAN answered that he knew of no other private case tried
under the antitrust statute, and thought this was the first;
thus there is no precedent to draw on. He added:
The trial court actually gave us a ruling ... that
said, "I read the statute as precluding Rule 82 fees
to prevailing defendants." That issue was part of
what was appealed to the supreme court. But because
the supreme court ... reversed the grant of summary
judgment and sent us back for trial, the supreme court
never addressed the issue of whether the trial court
was right or wrong on that ruling. But Judge
Michalski certainly has told us what his perspective
is ... on the issue, and ... I assume he'll give me a
fair chance to try and change his mind; if we win, we
have that issue presented all over again. But ... he
read the statute, and ... I respect him completely.
And ... he's entitled to his view. ... I think it does
violence to the words in the statute, though, in the
intent.
Number 1251
REPRESENTATIVE OGG asked what the argument would be on the other
side of the existing case.
MR. FELDMAN replied:
Well, I know what their argument is because they
advanced it ... when we had this issue crop up back in
1999, ... the first time. ... Rule 82 talks about
"except as otherwise provided by law. Their view is
that when the legislature speaks to [attorney] fees at
all, it displaces Rule 82. And the only thing that
thereby becomes operative is what the legislature has
said, which, I supposed, ... if that were the rule,
the legislature ought to keep in mind that if it ever
says anything about [attorney] fees, it ought to make
sure it says it completely and entirely, because it's
effectively displacing Rule 82.
Now, I'm not sure that that's a sensible reading ...
of the law - and of the rule, for that matter - but
... they would say that because the antitrust statute
only spoke to full fees for prevailing plaintiffs, it
thereby displaced everything else. ... It depends on
one's view, I suppose, of the intent of the statute as
to whether that's true or not. We couldn't find
anything in the history of the statute that supported
that [view].
CHAIR McGUIRE asked whether anyone else wished to testify; she
then closed public testimony.
REPRESENTATIVE GRUENBERG, noting that [Mr. Feldman] was speaking
on behalf of at least one of the defendants, asked whether the
plaintiffs had been notified. He recalled that when legislation
involves litigation, usually the policy has been to notify
everyone.
CHAIR McGUIRE offered her belief that most bills before the
House Judiciary Standing Committee affect litigation in some
way. She announced that her position is to provide five days'
notice on every bill, and that the legislative information
offices (LIOs) are available. She said this bill is no
different from any other, and that there is no intent to either
exclude or include anyone.
MR. FELDMAN added that although he has a role as legal counsel
for one of the parties in the case, this is a little outside
those activities; he hadn't coordinated with the other
defendants and didn't believe the other defendants knew that
he'd sought this correction. He remarked, "We handled the
appeal back in 1999 and, frankly, it always just kind of stuck
in my craw that we were having to litigate that issue." He
indicated that after realizing that another way to deal with
this was to clarify the law, he'd begun the attempt.
Number 1412
CHAIR McGUIRE announced that the hearing on HB 249 would be
recessed in order to take up HB 164. [The hearing on HB 249 was
recessed until later in the meeting.]
HB 164 - CLAIMS BY STATE-EMPLOYED SEAMEN
Number 1423
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 164, "An Act relating to the state's sovereign
immunity for certain actions regarding injury, illness, or death
of state-employed seamen and to workers' compensation coverage
for those seamen; and providing for an effective date."
Number 1509
TOM BRIGGS, Director, Marine Operations, Central Office, Alaska
Marine Highway System (AMHS), Department of Transportation &
Public Facilities (DOT&PF), said that the AMHS supports HB 164
because it feels that the bill benefits both the state and
state-employed seamen. He offered that the Jones Act is
intended to compensate seamen for illness or injury on long
voyages away from home, and to protect them from the risk of
abandonment. He opined, however, that AMHS employees do not
face those same risks, since typical AMHS voyages last only one
or two weeks and employees are never too far from home.
MR. BRIGGS remarked HB 164 will have a fiscal impact on the AMHS
because there are considerable general fund costs associated
with the fact that the Jones Act is the exclusive remedy for
AMHS employees. For example, the cost to the AMHS for unearned
wages is approximately a quarter of million dollars. He noted
that the provision in the union contract that allows for
unearned wages to the exclusion of annual leave or sick leave
was put there after the Alaska Supreme Court case, Dale Brown v.
State & Div. of Marine Highway Systems. He opined that passage
of HB 164 will increase the state's chances of being able to
successfully negotiate the removal of this unearned wages
provision.
MR. BRIGGS pointed out that in 1983, the representative from the
Inlandboatmen's Union of the Pacific (IBU) worked very hard, on
behalf of state-employed seamen, to get the contract changed to
allow for a workers' compensation remedy instead of a Jones Act
remedy. On the issue of whether the Jones Act provides a better
remedy, he relayed that he has been told of cases in which
injured seamen have become destitute while waiting for
resolution of their personal injury claims under the Jones Act.
He said that the AMHS is satisfied that workers' compensation
will adequately address maintenance and cure issues, and
indicated that having a workers' compensation system in place
will prevent frivolous lawsuits.
MR. BRIGGS said the AMHS believes that seriously injured
employees will have adequate occupational disability coverage
via the Public Employees' Retirement System (PERS) and the
Supplemental Benefits System (SBS). He mentioned that state-
employed seamen are provided with retirement benefits and health
care benefits, and opined that those seamen are not typically
exposed to hazardous working conditions. He offered his belief
that state-employed seamen face risks no greater than those
faced by laborers, heavy equipment operators, and public safety
personnel employed by the state. He said it is the AMHS's
contention that passage of HB 164 will give adequate remedy to
its employees, and asked that the bill be passed out of
committee.
Number 1784
REPRESENTATIVE GARA said he is troubled by the assertion that
AMHS employees file more claims than other classes of state
employees, because the statistics provided at the last hearing
on HB 164 compared AMHS employees, who almost all do manual
labor, with the types of state employees that don't do manual
labor. He asked whether there are any statistics comparing AMHS
employees with other state employees that do as much manual
labor as those in the AMHS.
MR. BRIGGS said he did not have such statistics at this time.
In response to further questions, he said that although state
employees who do manual labor might have a higher rate of claims
than was illustrated in the aforementioned statistics for
departments other than the AMHS, he did not think it would be as
much as two and three times higher as is the case with the AMHS
employees. He mentioned that when a seaman is sick or injured,
in addition to paying that person unearned wages, there is also
the cost of paying wages - sometimes overtime wages - to a
replacement employee and providing transportation to and from
the vessel. He said he suspected that if state-employed seamen
had to use sick leave when ill rather than receiving unearned
wages as they do now, there would be fewer claims filed.
REPRESENTATIVE GARA asked Mr. Briggs whether, if given the time,
he could provide a comparison using a group of workers who do
manual labor similar to what is performed by state-employed
seamen. He added that he would deem such a comparison relevant.
MR. BRIGGS said he could, adding that he might also be able to
provide information from the Washington state ferry system.
REPRESENTATIVE GARA, turning to the governor's transmittal
letter and its assertion that maritime law generates greater
compensation awards, said he is troubled by the idea that they
should change the law to reduce the compensation that injured
workers get as a way to balance the budget. He asked Mr. Briggs
to comment.
MR. BRIGGS said he agreed: "You don't want to balance the
budget on the back of the workers." But that's not the intent,
he argued. "We believe, and I think this can be substantiated
by talking to some of the seamen themselves, that there are
instances, more regular instances, where a person is deprived of
adequate compensation under the Jones Act remedy than they would
have been under the [workers'] compensation," he stated.
REPRESENTATIVE GARA said that according to his understanding,
Mr. Tseu, Regional Director, Alaska Region, Inlandboatmen's
Union of the Pacific (IBU) expressed concerns about HB 164 when
he testified before the House Labor and Commerce Standing
Committee.
Number 2016
CHAIR McGUIRE announced that the hearing on HB 164 would be
recessed in order to again take up HB 249. [The hearing on HB
164 was recessed until later in the meeting.]
The committee took an at-ease from 2:19 p.m. to 2:20 p.m.
HB 249 - RESTRAINT OF TRADE: FEES AND COSTS
Number 2031
CHAIR McGUIRE announced that the committee would resume the
hearing on HOUSE BILL NO. 249, "An Act relating to actions
involving monopolies and restraint of trade; and providing for
an effective date."
Number 2070
REPRESENTATIVE SAMUELS moved that the committee adopt Amendment
1, which read [original punctuation provided]:
Page 1, Line 9:
Delete "this section"
Insert "AS 45.50.562 - 45.50.570"
REPRESENTATIVE GARA objected for discussion purposes.
CHAIR McGUIRE explained that the purpose of Amendment 1 is to
clarify that it's a suit under the [entire applicable] section.
The current legislation only references AS 45.50.576, which
refers to suits by persons injured and treble damages. Without
this amendment, "the meat" of the suit isn't obtained, she
remarked.
REPRESENTATIVE GARA withdrew his objection.
Number 2101
There being no further objection, Amendment 1 was adopted.
Number 2117
REPRESENTATIVE SAMUELS moved that the committee adopt Amendment
2, which read [original punctuation provided]:
Page 1, Line 10:
After "costs", Delete "and"
After "costs", Insert "of the suit, including"
REPRESENTATIVE GARA objected in order to read Amendment 2. He
then withdrew his objection.
Number 2134
CHAIR McGUIRE noted that there were no further objections.
Therefore, Amendment 2 was adopted.
Number 2174
REPRESENTATIVE GARA moved that the committee adopt Amendment 3,
which read [original punctuation provided]:
Delete Section 3.
CHAIR McGUIRE objected.
REPRESENTATIVE GARA pointed out that virtually every time
legislation impacting legal rights is enacted, it applies to all
causes of action that accrue after the date of the act.
Therefore, [new legislation doesn't impact the rules or the
outcome of] pending lawsuits. The arguments presented in favor
of HB 249 are good ones, he said, adding that he agreed with the
substance behind HB 249. Furthermore, he anticipated that the
courts will end up agreeing that the state's interpretation is
the correct interpretation. He offered his belief that the
antitrust case [referred to by Jeffrey M. Feldman in the first
part of the meeting] should run its course. He noted that a
superior court's ruling on [attorney] fees can be appealed. The
Alaska Supreme Court will, he predicted, address the issue of
[attorney] fees on appeal, and will likely issue a ruling
favoring the defendants in this case. He said he didn't believe
the legislature should make it a practice to pass legislation
that would impact pending litigation.
REPRESENTATIVE GARA then acknowledged the weakness of his
argument: this legislation doesn't change existing law.
However, he noted that he isn't the authority on the matter;
rather, the supreme court is. Although he said that he hasn't
read all of the relevant cases, he did believe that he has an
understanding of the intent behind existing law. Again, he
relayed his belief that ultimately the [Alaska Supreme Court]
will agree that Civil Rule 82(a) of the Alaska Rules of Civil
Procedure ("Rule 82") applies when a defendant prevails under
antitrust statutes. Representative Gara said he didn't believe
it looks good for the legislature to pass legislation that could
be perceived as favoring one side in a [pending case] - a very
contentious case.
Number 2303
REPRESENTATIVE GARA explained that with the adoption of
Amendment 3, the normal effective date provision will apply.
Therefore, the legislation will be applicable a certain number
of days after passage and will be applicable to all new causes
of action. The courts should be left to make the decision, he
opined.
REPRESENTATIVE SAMUELS asked whether the elimination of Section
3 would also impact the case.
REPRESENTATIVE GARA said he believes that the courts will always
look to legislative history for legislative intent. He
indicated that he didn't feel comfortable impacting a pending
case.
CHAIR McGUIRE reiterated her earlier statement regarding the
need to speak clearly, effectively, and immediately on the
subject.
TAPE 03-34, SIDE B
Number 2389
REPRESENTATIVE GRUENBERG relayed his belief that this is a
different issue. Putting the effective date aside, the question
[the committee wants] to address is another clause, the
applicability section, that should be in the legislation. If
the legislation is left as it is, Representative Gruenberg said,
he thought the legislation would be interpreted as applying to
all cases previously, currently, or prospectively. Upon an
indication [from Chair McGuire] that such is not the case,
Representative Gruenberg said that [the language] is ambiguous.
Therefore, the legislation should include an applicability
clause regardless of the effective date.
REPRESENTATIVE OGG relayed his belief that [this legislation] is
stepping out in such a way that [the legislature] could be
perceived as acting as a court. When an act is passed, the
court looks for legislative intent from the legislature that
passed it. Therefore, the court would be looking back in time,
to the legislature that passed the antitrust statute, to try to
find legislative intent. Representative Ogg said [it seems]
that by looking back in the future and specifying the intent of
a past legislature, [this legislature would be] trying to
influence something that "we" really don't know. He relayed his
belief that this isn't the proper purview for the legislature,
to be stepping in [on a current, very heated case]. If the
desire really is to clarify the intent of a previous
legislature, then an applicability clause is necessary, he
opined.
Number 2253
JEFFREY M. FELDMAN, Attorney, Feldman & Orlansky, noted his
belief that this legislation is a clarification of current law,
not a change in the law. If one believes that this is a
clarification, then the question becomes why wouldn't one want
it to apply to all cases, including those currently in the
system. He said that a prospective effective date is even worse
because it suggests that the legislation is changing the law in
that this provision will only apply prospectively and thereby
imply that something different must be applied in the past.
Therefore, he stressed that he didn't want a prospective
effective date.
REPRESENTATIVE HOLM said that although he isn't an attorney, he
did know that it's the legislature's job and purview to write
law. Furthermore, it's not the legislature's place to allow
interpretation by courts to indicate how the legislature writes
law. Moreover, no legislature can bind another legislature and
thus if a legislature chooses to say that an existing law is
inappropriate, it's inherent upon that legislature to change it
if the legislature so chooses. He said, "I don't think that we
can't make those choices, in good faith." He then said that if
this legislature feels that this legislation should be
retroactive, then it should be so.
Number 2172
REPRESENTATIVE GARA requested that the committee members place
themselves in the shoes of someone involved in a lawsuit that's
important to them. He also requested that the members imagine
the opposite; a case in which an individual felt that he/she
would prevail, and the other side felt the same but went to the
legislature and requested clarity of the law such that that
side's view was reflected in the law. The latter situation
would be troubling, he said. Representative Gara said that it
would look poorly upon the legislature to issue a rule that
would be applied in a pending lawsuit.
REPRESENTATIVE GARA, after noting his support of the policy,
said that the legislature can pass a law and specify that the
legislation will clarify the intent behind previous legislation.
Because there are rules for interpreting statutes, he said, he
wasn't concerned that passing HB 249 would send a message to the
courts that the previous law was different. A letter of intent
can be included with this legislation to specify that it
clarifies the law, and all the comments on the record would
support that as well.
CHAIR McGUIRE noted that she respectfully disagreed with
Representative Gara. She informed the committee that when
someone requests that she introduce legislation, she won't do so
if she doesn't think it's the right thing. She relayed her
belief that [HB 249] is the right thing because she thinks it is
the law and is consistent with Rule 82 and with fairness and
equity. Furthermore, if the legislature speaks, she said, it
should speak clearly. She said, "My concern is that if you
speak halfway, even though you have all kinds of intent and
don't have an immediate effective date, that may be interpreted
as saying something as well."
REPRESENTATIVE GRUENBERG asked if the committee wanted to
include an applicability clause. He said that it seems that the
committee can either choose to make [HB 249] applicable to
pending cases or not. However, it seems that if the committee
chooses to say nothing and the language remains ambiguous, that
may be poor public policy. Representative Gruenberg suggested
that the committee address [whether to make HB 249 applicable to
pending cases or not].
CHAIR McGUIRE announced that the bill will move out of committee
today. She reminded committee members that Amendment 3 is
before the committee, and said she is maintaining her objection.
Number 1907
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 3. Representatives Anderson, Ogg,
Holm, Samuels, and McGuire voted against it. Therefore,
Amendment 3 failed by a vote of 2-5.
Number 1898
REPRESENTATIVE GRUENBERG moved that the committee adopt
Conceptual Amendment 4, which would add an applicability clause.
The committee took an at-ease from 2:42 p.m. to 2:43 p.m.
REPRESENTATIVE GRUENBERG specified that conceptually, the
applicability clause would say, "This act applies to cases
pending at trial or on appeal on the effective date of this
act."
CHAIR McGUIRE objected.
Number 1844
A roll call vote was taken. Representative Gruenberg voted in
favor of Conceptual Amendment 4. Representatives Anderson, Ogg,
Holm, Samuels, Gara, and McGuire voted against it. Therefore,
Conceptual Amendment 4 failed by a vote of 1-6.
Number 1835
CHAIR McGUIRE, after remarking that the current title of HB 249
is too broad, made a motion to adopt Amendment 5, which reads
[original punctuation provided]:
Amend title to read:
"An act relating to the award of attorney fees in
civil actions brought under monopoly and restraint of
trade statutes; and providing for and effective date."
Number 1821
REPRESENTATIVE GRUENBERG objected, and said:
I think it's still too broad. And I would move the
following amendment to ... Amendment [5]. After the
word "fees", add the following, "to defendant under
court rule". The title would then read: "An act
relating to the award of attorney fees" -- I should
say, "and costs" - "costs and attorneys fees". I'm
going to say, "to the award of costs and attorneys
fees to defendants under court rule in civil actions
brought under monopoly ..."
CHAIR McGUIRE said: "I have no objection to your friendly
amendment. With that, do you maintain your objection to
Amendment 5?"
REPRESENTATIVE GRUENBERG said no.
Number 1793
CHAIR McGUIRE asked if there were any further objections to
adopting Amendment 5 [as amended]. There being none, Amendment
5 [as amended] was adopted.
Number 1782
REPRESENTATIVE SAMUELS moved to report HB 249, as amended, out
of committee with individual recommendations and the
accompanying zero fiscal note. There being no objection, CSHB
249(JUD) was reported from the House Judiciary Standing
Committee.
HB 164 - CLAIMS BY STATE-EMPLOYED SEAMEN
Number 1757
CHAIR McGUIRE announced that the committee would resume the
hearing on HOUSE BILL NO. 164, "An Act relating to the state's
sovereign immunity for certain actions regarding injury,
illness, or death of state-employed seamen and to workers'
compensation coverage for those seamen; and providing for an
effective date."
Number 1720
J. LYNN MELIN, Port Captain, Central Offices, Alaska Marine
Highway System, Department of Transportation & Public Facilities
(DOT&PF), provided the following testimony:
I have 20 years in the industry, approximately 11 of
them offshore, sailing American ships, foreign ports.
I'm a graduate of the United States Merchant Marine
Academy [USMMA]; I hold an "Unlimited Masters/Oceans
license - all tonnage, all oceans." In addition, I
have an MBA [Master of Business Administration] from
the University of Maryland. ... My purpose is twofold.
One as a sailor. And one because of my observations
as port captain within [the AMHS]. I've been here
three and a half years; every injury and illness
report that occurs aboard our vessels crosses my desk,
and I read it. I also have some participation in
pulling documents together, finding out what the
injury was - illness is pretty self-explanatory - and
we try to find the bottom line on what happened.
I want to state straight up ... that I am where I am
because of the Jones Act. The Jones Act has a
definite place in our country. ... It's main intention
with regard to personnel, in my opinion, is that it is
for seamen who go offshore. If a seaman goes from
Baltimore to Poland, or wherever he may go, and he
breaks his leg, and he gets off the ship in Poland, it
is the obligation of the employer to bring him back to
the states. It is also the obligation of the employer
to maintain his wages until his articles are closed -
that ship returns back to the [U.S.].
I believe that that definition of taking care of
seamen is appropriate; I think it's where it's
supposed to be. That seaman has no other remedy. His
only other remedy, other than the unearned wages or
the wages that he earns 'til the ship gets to the U.S.
port, is to sue. The company is not obligated to
provide him any type of compensation, any type of sick
leave, after that voyage ends. And I think that's
where the Jones Act does play a role. What it does
is, it gives that seaman the ability to go back to the
company and say, "Because you are unseaworthy, because
you have had problems with your work environment, you
owe my for my broken leg; it was your fault."
Number 1640
And that's where the seaman's remedy is: he sues, he
goes to court, he gets his remedy and he gets it up
front. The problem with this remedy is that ... he
doesn't have any other compensation coming in while
the court case is going through the courts. ... He
doesn't have any unemployment; he doesn't have any
[workers' compensation]. He may have some benefits
from a union, but that is not a guarantee. His only
compensation comes at the conclusion of that lawsuit,
which is why, when you do have injuries that are
substantial, that affect the man's or woman's working
career, then those lawsuits should be substantial.
They should be able to help him get through with his
life, especially if his injury was caused by an
unseaworthy condition. That is my understanding of
the intent of seamen's injuries and illnesses within
the Jones Act.
MS. MELIN continued:
Now, within [the AMHS], there ... are other
compensations that [AMHS] employees receive. They
receive sick leave - they earn it, it's part of ...
our contractual obligation - and they also receive
unearned wages to the end of the voyage. So if a
seamen, in our case, broke a leg on day one of his
voyage, he would get wages until the voyage ended -
which in most cases in the Southeast are one to two
weeks, and they go longer up in the Southwest system -
... [and] because it's a broken leg, he's probably out
for five or six weeks or whatever the case may be, he
then would be entitled to the sick leave that he has
earned as employee to the State of Alaska. The
question is, ... then is he entitled to additional
compensation by suing the state ... because he broke a
leg [by doing] ... whatever [he was doing when it]
happened? ...
The question is: Is it not enough to say that we do
take care of our employees, that we do bring sick
leave into effect, [that] we do want to bring
[workers' compensation] into effect? We have cases
within [the AMHS], one in particular, that the
gentleman was practically destitute by the time his
case closed. ... It took approximately four years for
that case to come to a conclusion, and he was doing
nothing in the meantime. So, the question is, where
is the benefit? I'm not sure that the right to sue
the employer is the answer. I think where our
thoughts need to be, is, what does the person need -
what does the employee need? And [workers'
compensation] certainly seems to be able to handle
that.
Number 1460
MS. MELIN added:
Now, ... what's the percentage of major injury? There
has been one [case] since I've been here - I've been
here three and a half years; I do not know where that
[case] is. There have been a couple that have been
brought up to me in the last ten years. Are they the
exception? The answer is yes. Do we have the
individuals onboard the ships that have injuries -
slips and falls, sprain the wrists - get the flu? Do
they need to be entitled to Jones Act compensation?
I'm not sure. I think that they can be compensated
with sick leave, that they can be compensated with
[workers' compensation], and that we should look at it
that way.
Seamen who go offshore do not have sick leave. I
sailed 11 years offshore. If I broke my leg the day
before the ship got back to U.S. port, the next day I
was done - I had no compensation coming to me - unless
I sued the employer. However, if I was going away for
a three-month trip, and I broke my leg on day two, I
would be entitled to compensation for the next three
months. That would give me time to heal, get back on
my feet and get back to work. And that is the intent:
for these people to get up, get going, and get back to
work.
Number 1372
JAMES P. JACOBSEN, Attorney at Law, Beard Stacey Trueb &
Jacobsen, LLP, offered the following testimony:
I would only make two really very brief points.
Number one is [regarding] ... the statistics that Mr.
Thompson [Director, Division of Risk Management,
Department of Administration] provided to the
committee [on 4/7/03]: I think there's been a
misunderstanding between the committee and Mr.
Thompson on those statistics. If I understood his
testimony, there would have been about 340 Jones Act
claims in the last two years, and Ms. Cox [Chief
Assistant Attorney General, Civil Division (Juneau),
Department of Law (DOL)] testified there are about 15
pending suits.
It occurs to me that what Mr. Thompson stated were
Jones Act claims were merely reports of accident or
injury on the ship, rather than actual claims or cases
in which monies were paid to a seaman pursuant to a
legal judgment or pursuant to a settlement agreement.
I would think that if you focus on the number of
claims where there was a settlement agreement assigned
or a judgment entered against the state, it occurs to
me that you will find that probably the amount of
claims is vastly diminished from what was represented
in the statistics. And I will also say that the
[AMHS] and [Ms. Melin] can testify to this too and
confirm this.
The state ferries are covered under the international
safety management [ISM] code and they must have a
safety management system [SMS] in place. And this
system has applied to the ferries for the last three
or four years, and it actually requires the reporting
of all accidents, or injuries, to the management so
that they can look into it and see how those can be
avoided in the future. So, whether or not a seaman
intends to file a Jones Act claim against his or her
employer, they are still required, under the ISM and
SMS, to report an accident so that the management can
look into it.
Number 1270
MR. JACOBSEN continued:
The second point was the Director's [Mr. Briggs's]
point about paying unearned wages to the end of the
voyage. Changing this to workers' [compensation] is
not going to change the liability at all to the [AMHS]
on that because sick leave is, my understanding is,
it's an unfunded obligation in that when a state
employee retires, he or she gives up their sick leave
compensation. And it's a use-it-or-lose-it [benefit],
and, therefore, rather than just paying wages to the
end of the voyage under the union contract ..., the
[AMHS] will then be paying sick leave for those same
days, and so it won't make any difference at all, I
don't think, based on my understanding, as to what,
ultimately, the [AMHS] will end up paying when a
worker has to get off the vessel, whether they're sick
or whether they're injured.
REPRESENTATIVE GRUENBERG turned to page 1, line 12, which
deletes the phrase "under this section". He said he is
reluctant to remove that language. He asked why that language
should be eliminated.
Number 1124
SUSAN COX, Chief Assistant Attorney General, Civil Division
(Juneau), Department of Law (DOL), offered two explanations for
the deletion of that phrase. One, it clarifies that the
retentions of immunity in AS 09.50.250(1)-(5) are not the
exclusive expressions of immunity in statute. Two, it would
preclude someone from making the argument that there is
contradictory language elsewhere in statute.
REPRESENTATIVE GARA asked whether the administration would be
amenable to an amendment that would allow "both parties" to
negotiate workers' compensation into the contract. Under such
an amendment, if the parties don't agree to have workers'
compensation apply, the Jones Act would still apply.
MS. COX opined that the Alaska Supreme Court case, Dale Brown v.
State & div. of Marine Highway Systems, determined that such
provisions are void in the face of federal law.
REPRESENTATIVE GARA observed, however, that the Dale Brown
decision simply says that absent an expression of legislative
intent, the Jones Act applies and that the legislature can
change that situation if it so chooses. The legislature, he
surmised, could make a statutory change to the effect that
workers' compensation laws apply if the parties agree to it.
MS. COX acknowledged that such an option, if placed in AS
09.50.250, might be possible. In response to further questions,
she mentioned that although railroad workers throughout the
country are ordinarily covered by the Federal Employers'
Liability Act (FELA) - which is incorporated by reference into
the Jones Act - Alaska Railroad employees are not; instead, the
Alaska workers' compensation law covers those employees.
REPRESENTATIVE GARA asked whether there are any other seamen in
Alaska who are not subject to the Jones Act.
MS. COX said no; in Alaska, the people who actually qualify as
seamen under the Jones Act have only that as their remedy. She
mentioned, however, that there are "seamen in other states, who
are employed by other states," who have workers' compensation
remedies instead of Jones Act remedies.
Number 0565
REPRESENTATIVE GRUENBERG mentioned that there are historical
reasons, having to do with protecting wards of the admiralty,
for the development of the Jones Act.
MS. COX agreed, but mentioned that the working conditions of
state-employed seamen today are quite different, as are their
benefits.
REPRESENTATIVE GRUENBERG spoke in favor of the aforementioned
suggested amendment regarding allowing parties to negotiate
which remedy will apply. He asked whether other states have
"allowed this to be the subject of collective bargaining."
MS. COX mentioned that the dissenting opinion in the Dale Brown
decision said that the majority had ignored the labor law across
the country and that this really was an area in which the unions
could collectively bargain. She noted, however, that she did
not know whether there were any case citations associated with
that dissenting opinion, or whether the subject of the
collective bargaining spoken of related to workers' compensation
remedies versus Jones Act and other maritime remedies.
REPRESENTATIVE GRUENBERG suggested that perhaps the
aforementioned amendment could be crafted to include the phrase,
"to the extent allowed by federal law".
MS. COX pointed out, however, that the point of HB 164 is to
say, "we're not doing it under vestiges of federal law." Thus,
"we'd have to be doing it through the vehicle of AS 09.50.250 in
order for this to be operative," she added, because, outside of
the state's waiver of sovereign immunity, the state is not
allowed to bargain "this kind of substitution" with its unions.
REPRESENTATIVE GRUENBERG surmised, then, that "if we waive
sovereign immunity, we could."
MS. COX replied, "That's the theory."
Number 0305
KEVIN JARDELL, Assistant Commissioner, Office of the
Commissioner, Department of Administration, said that the
administration would be opposed to Representative Gara's
suggestion. He said the administration views the decision to
have workers' compensation apply to state-employed seamen as a
policy call, the same type of policy call made for law
enforcement officers who also work in dangerous situations. He
added that if workers' compensation is not fairly compensating
state employees, then that would be a different policy call and
a different bill. He opined, however, that it is the
administration's position that employees are "well taken care of
and well cared for" under workers' compensation, and is
therefore the policy that the administration has elected to
pursue. "We think it's better for the vast majority if not all
of the employees; we think it's better for [DOT&PF]; we think
it's better for the state," he added. He also opined that there
is still the question [even with a statutory change] of whether
a union can bargain away its members' "rights of litigation."
MR. JARDELL, in response to a question, said that he did not
have any case law to support his position on the suggested
change; rather, it is just his instinct that the courts would
still reject a collective bargaining agreement on this issue.
He said it is the administration's strong belief that policy
dictates that workers' compensation is the better remedy for the
employees.
REPRESENTATIVE GARA indicated that although he respects that the
administration is making a policy decision, he can't accept that
it is the administration's position to decide which remedy is
better for workers. "I'd like to hear from the workers
themselves," he qualified. With regard to the issue of whether
his suggested change would present a legal problem, he opined:
If the Alaska Supreme Court says, "The Jones Act can
apply," and if the Alaska Supreme Court says, "The
workers' [compensation] law can apply," then the
Alaska Supreme Court would say that you can come up
with a contract that lets either of those laws, that
they've said can apply, apply. So, if they've said
that either of those can apply, they would respect a
contract that picked which one of those laws should
apply. There's no doubt in my mind. If you come up
with legal precedent to support your position, I'd
like to see it, but I just can't accept the legal
interpretation that you've [offered as a basis to
reject this amendment. If it's researched, I can
accept it; if it's instinctive, I can't accept it.]
[The preceding bracketed portion was taken from the
Gavel to Gavel recording on the Internet.]
TAPE 03-35, SIDE A
Number 0041
REPRESENTATIVE GARA made a motion to adopt Conceptual Amendment
1, which read [original punctuation provided]:
- Allow parties to negotiate to be covered by Wkrs
comp law. But don't mandate it.
With no agreement, the Jones Act will apply.
Number 0052
CHAIR McGUIRE objected.
MR. JARDELL reiterated that he doesn't know whether the court
would view that as an individual right and one that can be
waived by the union. He said that "it" causes him concern. He
relayed that there are five separate bargaining units that "deal
with" seamen. He said, "Bargaining over, 'We will give you 50
more dollars if you waive your rights to Jones Act
compensation,' isn't the type of policy call that the
administration believes is a good one." He again said that the
administration believes that workers' compensation provides a
fair remedy, adding that if such is not the case, either the
legislature or the governor should revisit the issue to ensure
that it does provide an adequate remedy for all state employees.
REPRESENTATIVE GARA opined that contrary to how such might
sound, the latter portion of Mr. Jardell's statement is not
really an open invitation to change the current workers'
compensation laws. Speaking in favor of Conceptual Amendment 1,
he said:
Here's what I know is clear. If you suffer a
substantial injury, you're entitled to full
compensation under the Jones Act. If you suffer a
substantial injury, you're entitled to partial wage
compensation and then very partial compensation for
physical injury under the workers' [compensation]
statute. That is the reason for the statement by the
administration in its letter recommending that we
adopt this bill change; it's the reason for their
statement that under existing law, the existing law
results in ... "significantly greater compensation
awards to injured employees." It's just not an issue
that's debatable.
That's why many employers like the workers'
[compensation] system better, because awards are
limited. There are benefits to the workers'
[compensation] system; there are detriments to the
workers' [compensation] system. The detriment is that
your whole body is valued at $170,000 and, depending
on whether you've lost 100 percent of your body or
just 50 percent or 25 percent, you get a portion of
that $177,000 to compensate you for your loss of your
ability to fish, your loss of your ability to hike,
your loss of your ability to swing a child around,
your loss of your ability to do anything with your
family. It values all of that, apart from the wage
claim and the medical costs claim, all of that at a
portion of $170,000.
Number 0365
REPRESENTATIVE GARA added:
I think there are serious problems with the workers'
compensation statute. I think that it is a false
choice to say, "Put workers in the workers'
[compensation] statute now, which pays limited
compensation, and then later on consider whether or
not you want to change it." We know what kind of
system this bill is asking us to put workers in. I
think it presents problems. I don't want to balance
the budget on the backs of workers; I don't want to
balance the budget by taking away workers rights to
receive full compensation. For now, I ... will
entertain comments from the unions that are affected,
before this reaches the floor.
But I think it is fair to give people the choice which
law they want to apply: the law that saves the state
money, which is the workers' [compensation] law - I
think we all agree that the workers' [compensation]
law would save the state money; that's the reason for
the bill - or existing law. Let it be negotiated. We
know in the '80s, the workers' [compensation] law was
at the point and compensated at a level that unions
didn't mind being covered by it. I suspect that the
workers' [compensation] law is far less generous today
than it was 15 years ago from the perspective of
injured workers. They might want to negotiate it into
their contracts; they might not.
But I think we should leave it as a matter of free
choice. I don't think if workers don't want this law
to apply to them, I don't think we should force them
to have a law they don't want to apply, to apply. I
don't think we should take rights away that workers
don't want give up, in order to balance the budget.
So, this amendment that I present probably will save
the administration money; ... it will in those cases
where the workers' [compensation] law is negotiated
into a contract. It won't where it's not. But I see
this as an issue of fairness and not a way to solve
the state's budget woes.
CHAIR McGUIRE relayed that according to conversations she's had
with the representative from the Inlandboatmen's Union of the
Pacific (IBU), although there is mixed opinion among members of
the IBU, "it appears to be the belief of the general population
of workers that more of them would benefit under the no-fault-
based workers' [compensation] system, whereby you're guaranteed
instant compensation for your illness and without a statute of
limitations." She reminded members that under the Jones Act, a
seaman must bring a suit, which must find fault, and that there
is a statute of limitations. She suggested that while one of
the goals of HB 164 is to save money, another goal is to
compensate a higher percentage of seamen more certainly.
Number 0572
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Conceptual Amendment 1. Representatives Ogg,
Holm, Samuels, and McGuire voted against it. Therefore,
Conceptual Amendment 1 failed by a vote of 2-4.
Number 0619
REPRESENTATIVE SAMUELS moved to report HB 164 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 164 was reported from the
House Judiciary Standing Committee.
The committee took an at-ease from 3:20 p.m. to 4:10 p.m.
HB 92 - CLERGY TO REPORT CHILD ABUSE
Number 0637
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 92, "An Act relating to reports by members of
the clergy and custodians of clerical records who have
reasonable cause to suspect that a child has suffered harm as a
result of child abuse or neglect." [Before the committee was
CSHB 92(STA).]
REPRESENTATIVE SAMUELS moved to adopt the proposed committee
substitute (CS) for HB 92, Version 23-LS0257\U, Lauterbach,
4/8/03, as a work draft. There being no objection, Version U
was before the committee.
Number 0710
RICHARD BLOCK, Representational Lobbyist for Christian Science
Committee on Publication for Alaska, told the committee that he
is speaking on behalf of those who turn to spiritual prayer for
healing. He referred to his previous testimony regarding HB 92,
heard by the House State Affairs Standing Committee [on March 6
and 18, 2003], wherein he stated that his organization had no
objection to the proposed legislation and understands its
purpose, and had asked for and was granted some changes in the
language that recognize that Christian Science practitioners
need the same level of protection as ordained clergy because
they do take "confidential communications" from those who come
for spiritual solace or healing. He added, "And that could
include situations where they might disclose the kind of things
that the legislature's trying to reach here." He said, "So, we
were pretty content with [CSHB 92(STA)]."
MR. BLOCK said that he had not studied Version U until last
night. After reading it, he said, he came to the conclusion
that the committee is still interested in ensuring that the
provisions [in the bill] apply to all faith communities, so that
those who entertain confidential communications from the members
of that faith community are as protected as those who might
speak to a catholic priest, or a minister, or a pastor who is
ordained. He noted that a Christian Science practitioner is not
ordained and is not selected or engaged in anything that might
be termed "ecclesiastical." Thus, he has concern regarding the
way the language has developed; he said that it tends to focus
on those faith communities that have a more elaborate
ecclesiastical, ceremonial, or ritual approach to determining
who can speak and pray with those who have the need for it.
Number 0906
MR. BLOCK said that in talking with the staff:
They use the word in the definition of ... "clergy" -
those who are set apart. But I'm not sure that I
understand what the meaning of that is.
Unfortunately, should this ever reach the level of
having to be interpreted by a court, we're left with
judicial interpretation and the rules thereof, and I'm
afraid that the overabundance of language here that
speaks to the more ceremonial and ritual may turn the
court away from the fact that, in reality, what the
legislature had in mind was making room and
recognizing all faith communities that had people
within them that wanted to pray for and with those
that were in need.
MR. BLOCK said that in keeping with what he believes is the
legislature's intent, he would propose some modest changes. He
noted that there are two things that [Version U] does
differently than CSHB 92(STA). He elaborated:
One is: it really tightens up the circumstances under
which the communication is protected. Irrespective of
who they're talking to, the communication is protected
only if it meets three criteria set out in [proposed
AS 47.17.021].
CHAIR McGUIRE indicated to Mr. Block that the committee has
formulated amendments to address the issue he is raising.
Number 1027
FLOYD SMITH, Consultant, Alaska District Council of the
Assemblies of God, said that his organization could endorse
[Version U] as long as committee adopt the same amendments that
Mr. Block has proposed.
MR. BLOCK clarified that one of his amendments [which was later
referred to as Conceptual Amendment 1] reads [original
punctuation provided]:
Page 2, line 14
Delete "in the clergy member's ecclesiastical
capacity"
MR. BLOCK opined that the language doesn't add anything, but
strengthens the impression that "you have to have some sort of
ecclesiastical formal arrangement." He added, "And we're trying
to move away from that."
MR. SMITH said, "We could endorse that." He referred to [page
2, beginning on line 15], which read: "if (1) the church
qualifies as tax-exempt under 26 U.S.C. 501(c)(3)(Internal
Revenue Code)". He told the committee that many of his
organization's churches are in villages, are not incorporated,
don't have 501(c)(3) status, and "piggyback on the basis of the
state." If it is the intent that a church qualify for and
receive 501(c)(3) status, he said, there will be problems in the
villages. If it instead simply means that the church "could"
qualify, then that's okay, he stated.
MR. SMITH referred to the portion of [page 2], line 19, which
read: "places the clergy member specifically and strictly". He
said his organization would like to see "and strictly" deleted
because "it adds nothing to it, and it might be subject to
interpretation."
MR. SMITH also noted, in keeping with Mr. Block's comment
regarding Christian Science practitioners and the definition of
clergy, that many Assembly of God ministers and other
evangelical ministers are not ordained; instead, they are
licensed. He said he would like the word "licensed" to be used.
Number 1199
CHAIR McGUIRE thanked Mr. Block and Mr. Smith for their
testimony. She then announced that public testimony was closed.
REPRESENTATIVE GARA said:
I think I can speak for most of us if I say that we
don't want to create a privilege that is so broad that
it would strike out the duty to report child abuse or
child neglect. And I applaud the committee members
for inserting the term child neglect back into this
version of the bill. I believe we should report both
child abuse and child neglect; it is that important.
We still have a decision to make. I think many of us
believe that the confidentiality provision should be
written as narrowly as possible. That was the intent
of the sponsor when just the sacramental confession
was included into the confidentiality provision, but
nothing else. But many of us thought, "Well, that is
too religion-specific." I applaud [Chair McGuire].
We've all discussed what's probably the most narrowly
drawn confidentiality provision in the country, and
that's the Idaho version. ... That's the one that is
now in this CS.
But, before we discuss which confidentiality provision
to accept - and that's what all the amendments relate
to, which confidentiality provision to accept - I
still am wondering whether or not we should recognize
any confidentiality provision. And I guess I want to
hear from the members about that. We don't accept one
in the case of reporting abuse of elders. Many other
states do not accept any privilege by clergy members
to refrain from reporting abuse and neglect. And I
would like to hear from the other committee members,
views on whether that is a proper approach, or whether
... it seems to us that we should adopt a
confidentiality provision. So, [it's] that threshold
question of whether a confidentiality provision is
something that we want or don't want. And I suppose
if the other members believe that we do need a
confidentiality provision of some sort, then I don't
need to hear from them, but that's my question to the
other committee members.
Number 1340
REPRESENTATIVE GRUENBERG stated that he thinks there should be a
confidentiality provision. He said that "these are very, very
confidential communications," and if a person goes to seek
counseling from a clergy person in a confidential setting, "that
ought to be respected." He referred to the recent revelations
of sexual abuse, and said that to his knowledge, every case was
"done outside of the confidences." Referring to the Alaska
Rules of Evidence, he noted that "priest penitent," more broadly
defined as "confidential communication with a clergy," is very
strongly respected. He stated that if the committee adopted
some kind of confidentiality provision, he would ask that
something similar be put in the elder abuse law.. He relayed
that Karleen Jackson, Deputy Commissioner, [Office of the
Commissioner], Department of Health & Social Services [DHSS],
told him that [the DHSS] wants child abuse and elder abuse to
have the same standards regarding [confidentiality provisions].
CHAIR McGUIRE said she has spent much time contemplating this
issue. She said she wondered "whether it was fair to the
children [who] were being abused." She asked, "Whose rights are
we putting first?" She said child abuse is a terrible thing,
with lifelong ramifications, and stated her concern that "those
abuses will be revealed and nothing will be done about them."
Noting that religion is an important part of society and the
church is an important part of many people's lives, she stated
that criminalizing priests and clergy for doing what they
believe is within the cannons of their church is not the goal of
the committee.
CHAIR McGUIRE said she would support a very narrow exception,
adding that it is her belief that most of what occurs is to be
reported by law. She said she would encourage members of the
clergy to advise their parishioners who are abusing children to
seek help and report it to the civil authorities.
REPRESENTATIVE SAMUELS said he agreed that it doesn't do any
good [for the legislature] to put into law that they report, if
they're not going to report because of their cannons and
beliefs. He said that he would hate to criminalize somebody
whose job is to help people. He continued as follows:
And I would also echo what [Chair McGuire] said on ...
"very narrow." Just because you're a catholic priest
doesn't mean, when somebody tells you something, that
it's in confession, or just because you are a minister
does not mean that it is confidential. There's got to
be a pretty bright line .... So, I would support
having the exemption.
Number 1642
REPRESENTATIVE GARA stated that it was also a very difficult
issue for him. He added:
The bill that came to this committee included a
provision that would have allowed many instances of
child abuse not to be reported. I think we've done a
good job in limiting the circumstances where ... that
would happen.
REPRESENTATIVE HOLM stated, "The bill we're talking about here
is not in place." He said he is looking at ten amendments which
would change the bill considerably. He suggested taking up the
amendments before debating the bill.
CHAIR McGUIRE said she had been allowing some latitude for
members to speak to the broader philosophical question regarding
whether any exemption should be provided. She said, "This bill
would clearly do that, and the amendments would clarify that
particular choice."
REPRESENTATIVE HOLM stated that he does not agree with
Representative Gara's assessment that reporting neglect is a
simple and easy thing to put in the bill, adding that he has
objection to such a provision. He said that until the
amendments are in place, it is difficult for him to make an
assessment of the bill.
REPRESENTATIVE OGG said he believed the question that
Representative Gara asked was whether to favor no restrictions
or favor strict confidentiality. He stated that he favors "a
strict statement of what confidentiality is."
REPRESENTATIVE GRUENBERG mentioned that although he'd had
specific amendments prepared affecting Sections 2 and 3, he has
decided not to offer those specific amendments. On the issue of
reporting neglect, he said that although the House State Affairs
Standing Committee eliminated the reporting of neglect, he has
since decided that he does want neglect to be reported.
Number 1882
CHAIR McGUIRE noted that Representative Holm had been absent at
the time the committee discussed the issue of reinserting the
reporting of neglect. She indicated that because of testimony
provided by the Division of Family & Youth Services (DFYS), the
Alaska Catholic Conference, and the sponsor at the prior
hearing, the committee had agreed to reinsert the reporting of
neglect. She added, "It was in the elder abuse statute, [and]
it's the right thing to do."
REPRESENTATIVE HOLM indicated that his problem with requiring
the reporting of neglect is that the term is subjective. He
noted that there are two definitions of neglect: one is in the
Child In Need Of Aid (CINA) regulations, and the other is in
state law. He stated his understanding that the two are not the
same, adding that the CINA definition is stricter.
REPRESENTATIVE HOLM continued:
But my point is ... that the problem with neglect is
it's ... a view of someone who looks at how other
folks live and says that they've been neglected or not
neglected. Now I'm not promoting any child to be
neglected. Lord knows, I grew up in a homestead,
where people could have accused my parents of
neglecting me, because we didn't have any of the
amenities that the people that lived in town did. But
what I did have is ... good parenting, and I had love.
I had a lot of things that have nothing to do with
nice clothes and new shoes and any of those things.
So, I'm a little sensitive to this from a personal
standpoint because I want to give pastors and churches
the ability to uplift, to bring people up, to elevate
them without being penitent, without being accusatory,
without feeling as if they're going to have to judge
folks, based upon some inappropriate judgment. ... It
really has nothing to do with whether or not a person
can or cannot be neglectful of their children, but
whose making that choice? And to penalize, or to take
a member of the clergy, who is a member of the clergy
for the purpose of helping ... every person [who]
comes to them, regardless of where they come from, I
think ... it's a bad message. ... I ... think we could
probably all agree what child abuse is, but I'm not
sure you can use the word "neglect" because neglect's
too soft a word for me.
Number 2049
Neglect means that what? Maybe the mother left the
child in the car and went out and got drunk - good
case for neglect. [Maybe] she ... left the car and
... went in to get ... milk. Is that neglect? Well,
you could make the case it's neglect if, in fact,
somebody broke into the car and hurt the child. You
could make the case if she left the child in the car
and it was 100 [degrees] above [zero]. ... But I don't
think neglect is as firm a word or as good a word to
use, even though it's in law.
... We can write them down in a book, but that doesn't
mean the pastor who is sitting in the church reads the
law book. ... They only know neglect based upon their
history; they don't [know] what neglect is based upon
you and I sitting here ... telling them neglect means
such and such. So I think it's so nebulous of an area
that it's just tough for me to buy, ... putting it
into law like this. ... I think it's one of those
words that can be misused by overzealous members of
[the DHSS].
REPRESENTATIVE GRUENBERG responded, "That was the thinking that
carried the day in the [House] State Affairs Committee." He
stated, "I have changed my position since then."
CHAIR McGUIRE told Representative Holm that she appreciates what
he is saying, but said, "On this one, I err on the side of the
child."
Number 2142
CHAIR McGUIRE moved to adopt [Conceptual] Amendment 1 [text
provided previously].
REPRESENTATIVE GARA stated that he would object to each one of
[the amendments] so that he could read them in context with the
bill.
REPRESENTATIVE BOB LYNN, Alaska State Legislature, sponsor, said
that he has no objection to [Conceptual] Amendment 1.
REPRESENTATIVE GARA noted that the bill [with Conceptual
Amendment 1] would read as follows [on page 2, line 14]:
confidential communication made to the clergy member
in the course of discipline enjoined by the church
REPRESENTATIVE GARA asked for the definition of "in the course
of discipline enjoined by the church".
REPRESENTATIVE GRUENBERG said that "discipline" is in the course
of their official function"; however, he stated that he is not
sure of the meaning of the word "enjoined".
CHAIR McGUIRE noted that "this was taken from Idaho."
REPRESENTATIVE GARA asked what is wrong with "ecclesiastical
capacity". He asked if the concern is that it only applies to
religions that believe in a god.
REPRESENTATIVE GRUENBERG asked Mr. Block to clarify the issue.
MR. BLOCK reiterated his point that the term ["ecclesiastical
capacity"] tends to connote a more ritualistic, ceremonial, or
organized form of ordination. He said that his suggestion had
been to remove the abundance of language in the Idaho version
that would tend towards the more ceremonial and ritualistic
circumstance, and make it more open.
REPRESENTATIVE GRUENBERG said, "That was persuasive to me at the
time and it is now."
REPRESENTATIVE LYNN said that [his staff] has just informed him
that the word "ecclesiastical" is the Latin word for "church."
WILLIAM MOFFATT, Staff to Representative Bob Lynn, Alaska State
Legislature, said removing that word would be fine.
REPRESENTATIVE HOLM said, "So we're just getting rid of the word
'ecclesiastical'."
REPRESENTATIVE GARA, in response to a question, said he
maintains his objection.
Number 2322
REPRESENTATIVE OGG suggested that the word "ecclesiastical" be
replaced by the word "religious" [on page 2, line 14].
CHAIR McGUIRE called it a friendly amendment to [Conceptual
Amendment 1]. Thus [Conceptual] Amendment 1 would now read:
Page 2, line 14
Delete "ecclesiastical"
Insert "religious"
CHAIR McGUIRE asked whether there were objections to [Conceptual
Amendment 1, as amended].
REPRESENTATIVE GARA said he had no objection.
Number 2340
Therefore, Conceptual Amendment 1, as amended, was adopted.
CHAIR McGUIRE announced that all the amendments would be
conceptual so that the drafters could alter them as needed in
order to "make this work."
REPRESENTATIVE GRUENBERG, referring to the language on page 2,
line 15, said, "I assume that ... means in the course of
discipline sanctioned by the church (indisc.)." He suggested
replacing "enjoined" with "sanctioned."
Number 2361
CHAIR McGUIRE, in response to Representative Gruenberg, [made a
motion to adopt] Conceptual Amendment 2, as follows:
Page 2, line 15
Delete "enjoined"
Insert "sanctioned"
There being no objection, Conceptual Amendment 2 was adopted.
REPRESENTATIVE GRUENBERG referred to Mr. Smith's previously
stated suggestion to strike the words "and strictly" [from page
2, line 19].
TAPE 03-35, SIDE B
Number 2380
REPRESENTATIVE GRUENBERG offered Conceptual Amendment 3, to
delete the words "and strictly" from page 2, line 19.
REPRESENTATIVES SAMUELS and GARA objected.
CHAIR McGUIRE said she likes "specifically and strictly",
because it makes the language clear.
REPRESENTATIVE GARA concurred with Chair McGuire. He
elaborated:
We are trying to keep this confidentiality provision
... as narrow as possible, because I want as much
abuse and neglect to be reported as possible, without
offending the major tenets of a religion.
REPRESENTATIVE GRUENBERG withdrew Conceptual Amendment 3.
[The next amendment was also given the name, "Conceptual
Amendment 3."]
Number 2328
REPRESENTATIVE GRUENBERG [made a motion to adopt Conceptual]
Amendment 3, which read [original punctuation provided]:
At P. 2 ln 20
Delete "church"
Insert "religious"
There being no objection, Conceptual Amendment 3 was adopted.
REPRESENTATIVE OGG referred to the previously stated comments
[by Mr. Smith], regarding [page 2, beginning on line 15]: "if
(1) the church qualifies as tax-exempt under 26 U.S.C. 501(c)(3)
(Internal Revenue Code)". He suggested inserting "could
qualify" instead of "qualifies". He said, "To me, 'qualifies'
says you either are qualified or you can, when you use the
'qualifies' term," but acknowledged that others might not have
this same understanding.
CHAIR McGUIRE noted, however, that they didn't want everybody
using the exemption.
REPRESENTATIVE SAMUELS relayed that he is not familiar with what
the qualifications are for that status.
REPRESENTATIVE OGG said that there is a list of qualifications,
adding that some organizations which do qualify apply for the
status and some don't.
CHAIR McGUIRE suggested using instead the term, "qualifies or
[meets] the standards".
REPRESENTATIVE GRUENBERG remarked that using the term "would
qualify" would be sufficient.
REPRESENTATIVE HOLM agreed.
Number 2212
REPRESENTATIVE OGG [made a motion to adopt Conceptual Amendment
4]:
Page 2, line 16
Delete "qualifies"
Insert "would qualify"
There being no objection, Conceptual Amendment 4 was adopted.
Number 2199
REPRESENTATIVE GRUENBERG [made a motion to adopt Conceptual]
Amendment 5, as follows:
Page 2, line 28
After "ordained"
Insert ", licensed,"
There being no objection, Conceptual Amendment 5 was adopted.
REPRESENTATIVE GRUENBERG began discussion of Conceptual
Amendment 6, which read [original punctuation provided]:
Page 2, line 29,
After "the", insert "laws,"
After "ceremonial, [sic]" insert "or"
After "ritual" insert "practices"
REPRESENTATIVE GRUENBERG suggested adopting Conceptual Amendment
6 in three parts.
CHAIR McGUIRE pointed out, however, that as a whole, Conceptual
Amendment 6 would change the language on line 29 to read:
"accordance with the laws, ceremonial or ritual practices, or
discipline".
Number 2128
REPRESENTATIVE GRUENBERG [moved to adopt Conceptual Amendment 6
as a whole].
CHAIR McGUIRE objected.
REPRESENTATIVE SAMUELS asked if there would be a problem using
the term, "the laws of a religious organization".
REPRESENTATIVE LYNN replied that he did not have a problem with
that term, because some churches have what is called "cannon
law."
REPRESENTATIVE GRUENBERG added that the Catholic Church has
[cannon law] and the Jewish faith has Talmudic law.
REPRESENTATIVE GARA objected to the insertion of the word
"practices". He elaborated:
I think the inclusion of the word "practices" allows
us to include somebody as a clergy member who, in the
church's day-to-day practice, is somebody who receives
confidential communications. That could be somebody
who we don't really regard as a clergy member. That
could be ... somebody who we regard as just a
counselor. I think that threatens to make the people
to whom these confidential communications can go to,
and the people ... who won't have to report abuse and
neglect, too broad. So ... I think that this would
allow ... counselors within a religion to refrain from
reporting abuse and neglect.
REPRESENTATIVE GRUENBERG pointed out that the phrase is
"ceremonial or ritual practices".
CHAIR McGUIRE concurred, adding that "ceremonial or ritual
practices" is one concept.
REPRESENTATIVE GARA withdrew his objection.
CHAIR McGUIRE asked whether there were any further objections to
Conceptual Amendment 6.
Number 1999
CHIP WAGONER, Lobbyist for the Alaska Catholic Conference, after
noting that the Alaska Catholic Conference is made up of the
three Roman Catholic bishops of Alaska, opined that a slight
drafting error has been made [in Section 3]. He elaborated:
Clergy members are required to report, under this
bill. We want clergy members to be required to
report, under this bill. But, if you define clergy
member as only those people who hear confessions
and/or confidential communications, then those clergy
members that don't hear confessions and confidential
communications would not be mandatory reporters.
Number 1943
CHAIR McGUIRE surmised, then, that perhaps an amendment defining
"clergy" is needed, unless [the committee] wants to leave the
[current] definition and delete, from page 2, line 31, "to hear
confessions and confidential communications". [The latter
concept was later moved as Conceptual Amendment 8.]
REPRESENTATIVE GRUENBERG pointed out, however, that [Conceptual
Amendment 7] strikes "and" from line 31 and puts in "or".
Number 1903
CHAIR McGUIRE, turning back to the issue of Amendment 6 and
indicating that there was no longer any objection, announced
that Conceptual Amendment 6 was adopted.
REPRESENTATIVE GRUENBERG relayed that [Justin Roberts, one of
his staff members] has just told him that "this definition is
throughout this bill"; therefore, "unless you hear confessions
or confidential communications, you won't even have to report."
CHAIR McGUIRE said, "Right; that's why we're going to strike
it."
Number 1882
CHAIR McGUIRE [moved to adopt Conceptual Amendment 7], which
read [original punctuation provided]:
Page 2, line 31
after "confessions"
Delete "and"
Insert "or"
REPRESENTATIVE GRUENBERG said:
If we do this, and I don't know if this is where Mr.
Wagoner was coming from, but Justin said that what --
there are two things here. One question is who
reports. And if clergy people are required to report
- clergy members - and we limit it to people who hear
confessions ... or confidential communications, then
clergy members who don't hear those don't have to
report. What we want to do is make everybody report,
but only have the people who [hear] confessions or
[confidential communications] have the privilege.
CHAIR McGUIRE said, "Absolutely." She surmised, then, that
Representative Gruenberg's comment was support for Conceptual
Amendment 7 rather than objection to it. She opined that by
inserting "or" in place of "and" on line 31, "we are getting at
exactly what you said, which is, we are allowing both types in
for the privilege, and in for the reporting."
REPRESENTATIVE GRUENBERG said he wasn't sure. He asked Mr.
Roberts to speak.
Number 1838
JUSTIN ROBERTS, Staff to Representative Max Gruenberg, Alaska
State Legislature, said:
[If] you don't hear either confessions or confidential
communications, then you wouldn't be required to
report. So somebody that doesn't hear either ...
REPRESENTATIVE GRUENBERG said, "That's what my concern is."
Number 1830
REPRESENTATIVE GRUENBERG [renewed Chair McGuire's motion to
adopt Conceptual Amendment 7].
Number 1827
REPRESENTATIVE GRUENBERG made a motion to adopt the following
[which became Conceptual Amendment 8]:
But then I'll offer another conceptual amendment for
the drafters and ... the staff to make certain that,
what we want is, everybody reports, but only the
people who hear confessions or confidential
communications have a privilege.
CHAIR McGUIRE said, "Perfect."
Number 1821
CHAIR McGUIRE asked if there were any objections to Conceptual
Amendment [7]. There being no objection, Conceptual Amendment 7
was adopted.
Number 1818
CHAIR McGUIRE asked if there were any objections to Conceptual
Amendment 8. There being no objection, Conceptual Amendment 8
was adopted.
MR. BLOCK, in reference to Conceptual Amendment 5, pointed out
that he had asked that the word "listed" be used in the
definition of a clergy member [on page 2, line 28], because
Christian Science practitioners are neither ordained nor
licensed. In response to Representatives Gruenberg and Ogg, he
clarified that it had been Mr. Smith, not he, who had offered
the word "licensed".
CHAIR McGUIRE opined that the term, "set apart" would addresses
Mr. Block's concern.
MR. BLOCK responded that if the words "otherwise set apart" were
used, [that would be] okay.
Number 1748
CHAIR McGUIRE reminded Mr. Block that public testimony was
closed.
REPRESENTATIVE GRUENBERG stated that he wanted the legislative
history to reflect that the words, "or set apart" means exactly
what Mr. Block has just said.
CHAIR McGUIRE announced that the record is now clear that "or
set apart" can include the Christian Science practice of listing
clergy.
REPRESENTATIVE GARA stated, "The record is now muddled." He
elaborated:
The questioner actually inserted something that none
of us intend and something that some of us do intend.
I believe that what we intend to do, and unless I hear
any objection, what we mean to do is for this to read,
"who has been ordained, licensed, or otherwise set
apart".
So, we all mean to insert the word "otherwise" in
concept, but we believe it's covered, as written, so
we're not going to insert the word. That's what we
mean to accept from ...
CHAIR McGUIRE said, "That's right."
REPRESENTATIVE GRUENBERG, at the same time, said, "That's the
amendment."
REPRESENTATIVE GARA concluded, "That's what we agree to."
[Although there was no motion to insert either "listed" or
"otherwise", the drafters later, at the request of the Chair,
inserted the word "listed" into the House Judiciary Standing
Committee's final version of the bill as part of Conceptual
Amendment 5.]
Number 1699
REPRESENTATIVE GRUENBERG moved to adopt [Conceptual Amendment
9], to be inserted at the end of Section 2, [original
punctuation provided]:
(c) nothing in this section shall prevent a clergy
member from reporting an instance of child abuse or
neglect.
There being no objection, Conceptual Amendment 9 was adopted.
Number 1678
REPRESENTATIVE GRUENBERG moved that "we do, conceptually, the
same thing for the elder abuse law."
REPRESENTATIVE GARA objected.
CHAIR McGUIRE suggested to Representative Gruenberg that he do
that in a separate bill.
REPRESENTATIVE Gruenberg said, "That's fine."
REPRESENTATIVE OGG recommended that the committee hold HB 92
over for the purpose of reviewing the drafter's finished
product.
CHAIR McGUIRE stated that she would prefer to see the bill moved
from committee. She said that the finished product would be
brought to members' offices, and offered that if there is a
problem, the legislation can either be pulled back into the
House Judiciary Standing Committee or altered in the House Rules
Standing Committee.
Number 1620
REPRESENTATIVE GRUENBERG moved to report the proposed committee
substitute (CS) for HB 92, Version 23-LS0257, Lauterbach,
4/8/03, as amended, out of committee with individual
recommendations and the accompanying zero fiscal notes. There
being no objection, CSHB 92(JUD) was reported from the House
Judiciary Standing Committee.
ADJOURNMENT
Number 1597
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:10 p.m.
| Document Name | Date/Time | Subjects |
|---|