Legislature(2011 - 2012)Anch LIO Rm 220
09/12/2011 11:00 AM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Review of Select 2010 Court Decisions | |
| Adjourn |
* 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
Anchorage, Alaska
September 12, 2011
11:09 a.m.
MEMBERS PRESENT
Representative Carl Gatto, Chair
Representative Steve Thompson, Vice Chair
Representative Wes Keller
Representative Bob Lynn
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Lance Pruitt
Representative Mike Chenault (alternate)
COMMITTEE CALENDAR
REVIEW OF SELECT 2010 COURT DECISIONS
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
GERALD LUCKHAUPT, Assistant Revisor of Statutes
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: Testified during the review of select 2010
court decisions.
DENNIS BAILEY
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: Testified during the review of select 2010
court decisions.
JEAN MISCHEL Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: Testified during the review of select 2010
court decisions.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Testified during the review of select 2010
court decisions on recent legal challenges.
QUINLAN STEINER, Director
Central Office, Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Testified during the review of select 2010
court decisions.
ACTION NARRATIVE
11:09:15 AM
CHAIR CARL GATTO called the House Judiciary Standing Committee
meeting to order at 11:09 a.m. Representatives Gatto, Lynn,
Keller, Thompson, Gruenberg, and Holmes were present at the call
to order.
Prior to addressing the agenda items, the committee spoke
briefly about a recent sexual assault case that occurred in
Anchorage.
^Review of Select 2010 Court Decisions
Review of Select 2010 Court Decisions
11:14:40 AM
CHAIR GATTO announced that the only order of business would be a
review of select 2010 court decisions. He turned to the first
case, Anderson v. Alyeska Pipeline Service Co., 234 P.3d 1282
(Alaska 2010).
CHAIR GATTO offered his understanding that if a company with
workers' compensation insurance does something that causes a
worker to be injured, it is clear the company will be
responsible to pay for expenses related to the injury and any
time the worker is not able to work. The question is whether
the worker can bring a lawsuit given the worker received
workers' compensation. He described the specific incident in
which Ms. Anderson was vacuuming, the cart moved, and a 70-pound
table fell on her.
11:16:27 AM
DENNIS BAILEY, Legislative Legal Counsel, Legislative Legal and
Research Services, Legislative Affairs Agency (LAA), stated that
the purpose of this report to the legislature is to identify
problem areas, conflicts, or areas in which the law has been
applied in an unusual way and to identify cases in which the
legislature may have an interest. A number of issues in this
case relate to issues of exclusive liability under the workers'
compensation statutes. However, the issue he wished to draw the
legislature's attention to is the question concerning the
liability "up the chain of contractors" that provides if a
subcontractor does not provide workers' compensation coverage,
the contractor is liable. If the contractor does not provide
coverage, the project owner is liable. In Anderson v. Alyeska
Pipeline Service Company, the court reviewed the issue of what a
project owner means, the definition in statute, and the question
of how the application of the project owner would apply in this
case. The reason Legislative Legal has identified this case for
extra consideration is that the court identified possible
unintended consequences or interpretations that may not have
been intended in the statute. For example, an issue may arise
when the project owner contracts with a contractor in a
situation which does not fall under a construction contract. A
circumstance may arise, such as one identified in the case, when
a law firm hires and contracts with a company to provide
delivery service. It is arguable in this case that the
liability in this case, the liability of the project owner,
would fall on the owners of the law firm. The court also
identified the issue of a building owner hiring a plow company
as a contractor to plow snow. Under the language, that would
make the project owner liable for the workers' compensation
coverage of a subcontractor or if the contractor doesn't provide
coverage, the building owner may be potentially liable for the
workers' compensation coverage of the snow plow company.
11:20:56 AM
MR. BAILEY summarized that is the issue the court identified and
the reason this decision is before the committee. He
highlighted several points, including that the court identified
this issue, but limited its decision to the facts of the case
recognizing some validity exists with the argument made by the
opposing parties. Therefore, it is unclear if the court would
arrive at the same decision in another case. In response to a
hypothetical example he answered that the project owner, the
building owner, or potentially the snow plow driver or
contractor could be held liable depending on the circumstances.
Those are questions of extraneous liability and exclusive
liability under the statute. He provided liability questions
such as in this case the injured party is a subcontractor so the
contractor should have made workers' compensation available but
did not. The next in line for liability is the renter followed
by the homeowner. The homeowner hired someone so he/she did not
need to deal with liability issues. The question then arises as
to whether the homeowner is the top of the chain of command.
Those issues have been debated and the legislature previously
decided that the exclusive liability provisions of the workers'
compensation statutes would apply to the project owner. That
issue was addressed in this case but did not present a
controversial issue in the process. Essentially, the court
applied the law that the project owner enjoys the exclusive
liability that a contractor would enjoy as an employer. The
point being that the legislature made a decision that the
exclusive liability would apply to project owners and that was
applied in this case in a routine manner. However, that was not
the reason this case has been identified for the legislature's
consideration.
11:25:01 AM
REPRESENTATIVE HOLMES related she found this case the most
interesting of the five cases in terms of whether the court
decided this case correctly and whether the legislature likes
the idea that the project owners are responsible for workers'
compensation, have immunity and cannot be sued for negligence,
and their liability is capped. Therefore, in a scenario in
which a contractor hires a subcontractor without workers'
compensation whose employee is injured, the contractor's
workers' compensation would cover the injured worker. However,
the contractor has some protections and cannot be sued for
negligence. The legislature made that decision a few years ago.
She said although it appears as though the statutes were
correctly applied in this case, the ongoing policy debate in the
legislature surrounds whether the policy was decided correctly
at the statutory level. She related her fascination with the
definition of "project owner" and how far does this go. The
court identified what constitutes a "project owner" on a
construction site such that it moves up from the subcontractors
to their subcontractors and on up the line. However, it's not
as clear when the activity happens outside the realm of
construction such as when a law firm hires a bookkeeper.
Businesses and companies hire people to perform routine
business, and therefore the question becomes whether the
legislature wants that liability to go "all the way up the
chain," which is one legitimate policy decision. If the
aforementioned is not the case, the legislature needs to decide
how it wants to protect workers when they are injured as well as
how to handle negligence, when people will be covered by
workers' compensation, when people should be able to sue, and
what employers of subcontractors should be aware of with respect
to liability. The courts have identified some gray areas in
the law that the legislature should address.
CHAIR GATTO asked whether the ultimate "project owner" is the
State of Alaska. He pointed out that Alyeska Pipeline Service
Company operates on state lands and takes state resources, and
therefore the question becomes whether the legislature went far
enough.
11:28:11 AM
REPRESENTATIVE THOMPSON recalled the earlier scenario in which a
snow plow company hired a subcontractor, but there was also a
renter, a rental management company, an absentee owner, and a
building owner. Therefore, he questioned how far this goes
since it gets really spread out.
11:28:44 AM
REPRESENTATIVE GRUENBERG suggested that a number of the cases
being considered today did not fall in his area of expertise
since some pertain to resource issues or other issues that other
legislative committees address. He suggested that the committee
refer cases with important and interesting policy issues to the
committee of first referral and this committee would be a
subsequent committee of referral. In doing so, the committee
would receive input from the primary committee.
CHAIR GATTO indicated his interest in doing so.
11:30:50 AM
REPRESENTATIVE THOMPSON posed a situation in which a
subcontractor with workers' compensation paid the employee's
medical bills and lost wages, but the employee tried to sue the
project owner. He recalled that in such a situation, in order
to succeed in such a lawsuit, the first person who would be
compensated would be the workers' compensation insurance. He
asked if that is still the case.
MR. BAILEY, clarifying that he is not an expert on workers'
compensation, said he thought the answer would be yes. He
related his understanding that workers' compensation provides
for a lien and if the injured party recovers damages through a
third party, the workers' compensation carrier can serve a
subrogation lien against the proceeds.
11:32:03 AM
REPRESENTATIVE GRUENBERG made a motion that the workers'
compensation portion of the case be referred to the House Labor
and Commerce Standing Committee. There being no objection, it
was so ordered.
REPRESENTATIVE GRUENBERG then directed attention to the issue in
the case which pertains to an offer of judgment. He referred to
page 8 of the decision, under "B. It was Error to Award Alyeska
Rule 68 Attorney's Fees." He said that it pertains to Civil
Rule 68, an offer of judgment, which is a document that either
party can serve on the other party; an offer to have judgment
taken to a certain extent or for a certain amount. If the offer
is accepted, a judgment is issued by stipulation.
REPRESENTATIVE HOLMES interjected it is basically a settlement.
REPRESENTATIVE GRUENBERG agreed, adding that it is a settlement
approved by the court, which becomes a judgment. If the offer
is rejected and the attorney does better at trial than he/she is
offered, the attorney can receive the actual attorney fees, he
said. He characterized it as "a real hammer." He pointed out
another set of statutes also adjusts the interest rate in the
same way. He referred to it as an informal way of doing it.
The offer of judgment in this case was offered by the defense
for a nominal sum of $10. This was not an appropriate subject
because it was such a trivial amount. On the other hand, it was
a real deterrent because rather than receiving a sum of money,
the other party and the attorney would have had to discuss that
the client may be liable not just for Rule 82, partial attorney
fees, but for the total attorney's fees. He highlighted that a
nominal offer of judgment only works one way. Only the
defendant can use a nominal offer of judgment for $10 since the
plaintiff would have to have a sum of money. For instance, the
plaintiff could ask for $1 million but say he/she will settle
for $100,000, although that could not be done if a case is only
worth $100,000. The use of a defense offer of judgment is
useful when the real issue is liability, since a person is
either liable or not. If, on the other hand, this decision were
reversed by the legislature or a future court the change would
benefit defendants at the cost of plaintiffs. Thus, some issues
exist for this committee. The subject of offers of judgment
usually only apply in money cases, but in the field of family
law judgments can be helpful in instances in which custody
issues are being worked out. Courts vary in whether offers of
judgment are allowed and most do not. He suggested that the
statutes would be inapplicable, whereas this pertains to
attorney fees. He inquired as to whether the committee would
like to consider this further. He offered to research this and
report back to the committee.
CHAIR GATTO said he did not object to him considering the
matter.
11:38:18 AM
CHAIR GATTO announced that the next case would be the Mat-Su
Valley Medical Center v. Advanced Pain Centers of Alaska, 281
P.3d 698 (Alaska 2009). He offered his understanding that the
issue revolves around the requirement of a certificate of need.
In the event a second hospital would be built, the hospital
would need to demonstrate the need for a second hospital. A
Palmer Hospital became a private hospital and subsequently the
Advanced Pain Center of Alaska sought to convert office space to
a single suite ambulatory surgery center.
11:39:56 AM
JEAN MISCHEL, Legislative Legal Counsel, Legislative Legal and
Research Services, Legislative Affairs Agency (LAA), explained
that the issue in the Mat-Su Valley Medical Center ("Mat-Su
Medical") case is not a question of whether the Advanced Pain
Center of Alaska developed a suite and violated a certificate of
need since the Advanced Pain Center of Alaska ("Advanced Pain")
did not have a certificate of need. The Department of Health
and Social Service's commissioner determined that a certificate
of need was not required, but the challenger delayed the
complaint beyond the administrative review period allowed to
file a complaint. Thus, a threshold standing question ensued
and became the primary concern of the court. In reviewing
whether Mat-Su Medical had standing to challenge the failure of
the Department of Health and Social Service's commissioner to
issue a certificate of need, the court considered AS 18.07.031
and AS 18.07.091. The commissioner had decided that the dollar
amount didn't meet the certificate of need threshold. Mat-Su
Medical challenged that determination and charged that Advanced
Pain had underestimated the value of the conversion. However,
an ambiguity in the statute that set out the three categories of
persons who could challenge a decision not to require a
certificate of need for that type of conversion. The court went
through some painstaking analysis of why the third category of
people who could challenge a lack of issuance of a certificate
of need included Mat-Su Medical. The decision turned on a
grammatical construction of the statute, which resulted in the
legislature being concerned the statute was in artfully drafted
or confusing. The court corrected any ambiguity in favor of
opening up challenges to the failure to issue a certificate of
need in this case. Therefore, the question for the legislature,
at least the Legislative Council, is whether that was a correct
interpretation given the confusing nature of the language in the
statute. She offered to elaborate on why that became an issue,
but highlighted that the primary concern was the existence of an
ambiguity that the court resolved broadly.
11:43:38 AM
MS. MISCHEL, in response to Chair Gatto, referred to AS
18.07.091. The problem the court identified was the use of the
word "violation" in the last phrase of the statute. The
statute, AS 18.07.091(a) provides the following: "Injunctive
relief against violations of this chapter or regulations adopted
under this chapter may be obtained from a court of competent
jurisdiction ...." And the third category was that "any member
of the public substantially and adversely affected by the
violation." The question the court had to sort out was whether
the phrase "by the violation" meant a violation of the chapter
of regulations or a violation of a certificate of need, which
was the second category of persons who could challenge the
statute. The court determined that the lead in language
controlled so the reference to violation was a violation of the
chapter of regulations and not a violation of the certificate of
need.
REPRESENTATIVE GRUENBERG commented that the statute is set out
in the opinion on page 4 under "B".
REPRESENTATIVE HOLMES noted the specific statute is also
included in the packet.
11:45:40 AM
CHAIR GATTO referred to page 13 of the Alaska Supreme Court's
opinion in members' packets. He read part of the conclusion, as
follows: "For these reasons, we REVERSE the grants of summary
judgment in favor of Advanced Pain and the state ...." He asked
whether that meant the summary judgment was in favor of Advanced
Pain and now it is reversed.
MS. MISCHEL explained that the court, instead of finding that
the Superior Court correctly decided this case of summary
judgment motion, remanded the decision back to the trial court
to determine whether Advanced Pain essentially got away without
a certificate of need and whether the commissioner was correct
as a factual matter since the summary judgment was overturned in
favor of Advanced Pain.
CHAIR GATTO asked whether Advanced Pain is the prevailing party.
MS. MISCHEL answered no. She explained that it isn't known at
this time which party will ultimately prevail, but instead the
court decided the Mat-Su Medical had standing to bring the case
to full trial rather than be decided on summary judgment, that
they lack standing of failure to issue the certificate of need.
In further response to Chair Gatto, she related that she would
research what happened at the trial court on remand. They may
have entered into settlement negotiations, she said. The
commissioner ultimately determined that she believed the court
correctly interpreted the standing question in favor of Mat-Su
Medical. Therefore, she surmised that the commissioner went
back administratively and reviewed the dollar amounts involved,
if it went to trial at all.
REPRESENTATIVE HOLMES related her understanding that Ms. Mischel
is stating the commissioner actually agreed with the Alaska
Supreme Court's interpretation of the grammatical wording of the
statute.
MS. MISCHEL answered yes, noting it was the former commissioner.
REPRESENTATIVE HOLMES offered her belief that this made sense.
It seemed the court reached the correct answer, but acknowledged
that the term "violation" is being used in more than one way in
AS 18.07.091(a)], whether it was violating the whole chapter of
law or violating a certificate of need. The first use clearly
refers to violations of the statute and the second use refers to
violations of the certificate of need, and the third instance of
violation has no clarification of whether it means violation of
statutes or certificate of need. So the question becomes
whether the administration violated the statute by not issuing a
certificate of need. She said she thought the court parsed the
question out correctly. She asked whether the committee agrees
and if the legislature should specify in statute "of this
chapter" to clarify the matter or just let the court's ruling
stand.
11:50:18 AM
REPRESENTATIVE GRUENBERG summarized the actions by the court.
He referred to the final paragraph of the opinion, and offered
that the trial court apparently dismissed the case. The Alaska
Supreme Court reversed that ruling and remanded the case to the
trial court and ordered the trial to go forward. The question
of statutory authority seems to be in an area for the House
Health and Social Services Standing Committee (HSS). He
suggested that the case be referred to the HSS committee for
consideration, noting he did not feel confident in making the
decision.
CHAIR GATTO agreed. He expressed concern that having a second
facility with expensive diagnostic equipment such as an MRI is
direct competition with the current hospital and both facilities
could suffer financially and go bankrupt. He questioned the
need and suggested this is the reason for the issuance of
certificates of need.
11:51:57 AM
MS. MISCHEL responded that particular issue was not addressed by
the court in this case. Again, the statutory threshold exists
for purchases and leases, but the issue for the committee to
consider is whether the hospital has standing to challenge the
underlying decision not on the certificate of need. Thus, the
question was fairly technical and does not get into the basis of
certificates of need.
REPRESENTATIVE LYNN asked whether anyone could explain if a
certificate of need means certificate of monopoly instead.
REPRESENTATIVE THOMPSON concurred. He noted that he's seen
abuses of this resulting in undue profits being made and
unreasonable charges to the public.
REPRESENTATIVE LYNN disclosed that he has introduced legislation
to eliminate certificates of need.
CHAIR GATTO pointed out that some monopolies are perfectly
legal, such as a power company since it doesn't make sense for a
second set of poles to be strung alongside the existing ones, so
monopolies are regulated. He related his understanding that
regulations accompany certificates of need, which do not provide
just an ability to control the market.
REPRESENTATIVE LYNN agreed that the case doesn't determine
whether the certificate of need is a good thing or a bad thing.
REPRESENTATIVE GRUENBERG asked whether Representative Keller
disagreed with forwarding the case to the House Health and
Social Services Standing Committee.
11:54:23 AM
REPRESENTATIVE KELLER offered his belief that the certificate of
need is a volatile subject since it refers to millions of
dollars. He pointed out that the question of whether a
certificate of need is needed is a volatile subject. He said
the question Ms. Mischel has brought up doesn't concern the
certificate of need but rather whether the language with respect
to violation is clear. He sought clarification on the three
instances. He recalled injunctions could be made by the
commissioner or the public, if harmed. He asked if Mat-Su
Medical brought the case as a member of the public that was
harmed.
11:55:53 AM
MS. MISCHEL concurred.
REPRESENTATIVE KELLER offered his belief that nothing in the
case illustrated financial harm to Mat-Su Medical so in order
for them to continue seemed to be a conflict. He thought Mat-Su
Medical would need to demonstrate financial harm due to the
opening of Advanced Pain, which would be fairly intense. He
expressed interest in the outcome of the case.
11:57:01 AM
MS. MISCHEL explained that the court looked specifically at
whether Mat-Su Medical was substantially and adversely affected
and found that it was a close question but it survived summary
judgment. The court had to go back to the trial court to see if
the challenge was factually valid. She referred to the last
section of the Alaska Supreme Court's opinion, in which the
court goes into some detail in terms of why Mat-Su Medical had a
financial stake in the decision.
CHAIR GATTO posed a scenario in which Mat-Su Medical offers a
service and an identical service is offered a tenth of a mile
away. In such a situation, he asked whether it would
automatically create an adverse profit situation for Mat-Su
Medical.
MS. MISCHEL said that the court wasn't satisfied. The Alaska
Supreme Court reviewed the number of cases handled by Mat-Su
Medical that were the same types of cases Advanced Pain would
also handle.
CHAIR GATTO asked whether Advanced Pain offered a new industry
or services that Mat-Su Medical did not offer.
MS. MISCHEL answered no, the court found that of the 127 pain
related procedures that Mat-Su Medical had performed in the
prior year, Advanced Pain would be equally qualified to perform
them after the conversion.
REPRESENTATIVE GRUENBERG recalled in the 1980s the House
Judiciary Standing Committee reviewed cases rather quickly. He
did not recall dealing with the technical aspects. He pointed
out that this is the first hearing in 10 years to hold this type
of review on the report. He hoped the House Judiciary Standing
Committee will be setting a precedent for how the legislative
judiciary committees will look at the reports. He further
recalled the process the Council of State Government committee
uses to review hundreds of laws. In many instances the laws are
referred from another committee, but are often sent back to the
original committee to work on technical issues not within the
area of expertise of the review committee. He affirmed his
belief that the House Judiciary Standing Committee should defer
to the committee of primary jurisdiction any questions that do
not pertain to the judiciary. He felt the questions in this
case deal with the subject of health and should be considered by
the House Health and Social Services Standing Committee.
CHAIR GATTO offered his belief that the committee of primary
jurisdiction determines that the issue is a legal issue and
defers to the judiciary committees.
REPRESENTATIVE KELLER said he wholeheartedly appreciated his
perspective. However, in this instance, the court, rightly or
wrongly determined legislative intent on the issue of how the
word "violations" was used. He thought the court probably ruled
correctly on the issue of the language. He agreed that matter
should go back to the HSS committee for discussion. He thought
that using that as justification was weak and the whole issue of
certificates of need should be considered by the legislature,
noting that Representative Lynn has such a bill. He
characterized it as huge issue since the cases end up in court
and the associated legal costs adversely affect the party
seeking a certificate of need. He did not think the question
addressed by the court provided justification for opening up the
whole certificate of need issue.
12:03:24 PM
REPRESENTATIVE GRUENBERG made a motion that the case Mat-Su
Valley Medical Center v. Advanced Pain Centers of Alaska, 281
P.3d 698 (Alaska 2010) and the notes be referred to the House
Health and Social Services Standing Committee. There being no
objection, it was so ordered.
12:03:42 PM
CHAIR GATTO announced that the next case for consideration as
the Planned Parenthood v. Campbell, 232 P.3d 725 (Alaska 2010).
12:04:40 PM
MS. MISCHEL explained that this case does not substantively
involve the issue of abortion, but instead addresses the issue
of the legislative initiative petition for the parental
notification law. Essentially, the court considered whether the
petition circulated for signature purposes prior to the matter
being place on the ballot was accurate enough to move forward
for a vote. The court distinguished between a petition summary
and a ballot summary and found while both are held to a high
level of accuracy it was okay that the petition summary was
deficient as a matter of law because it was corrected on the
ballot summary. The three areas the court identified as
deficient in the ballot summary prepared by the lieutenant
governor's office did not show an intent to mislead the
signatories of the petition. The lieutenant governor's summary
left out a few key details, one of which involved an omission of
the significant felony penalties that a physician would be
subjected to if the physician violated the notice procedures.
That was of primary concern for both the trial court and the
Alaska Supreme Court.
MS. MISCHEL said the other two issues involved that the Alaska
Parental Consent Act was being revised without providing
clarification of such to the voters and that parts of the act
had been invalidated as being unconstitutional. The third
omission was the fact that the lieutenant governor omitted from
the summary that the act would restrict current law since
current law did not require parental consent or notice. Thus,
there was already an opportunity for an abortion to be performed
on a minor without either consent or notice. On these three
issues, the Alaska Supreme Court agreed with the trial court
that the petition summary was deficient. However, the Alaska
Supreme Court corrected the summary for the purpose of the
ballot and when that initiative went to a statewide vote,
language in the summary and attached to the initiative included
the felony provisions and the existing law that would be revised
by the petition. She characterized it as fairly cumbersome, but
the Alaska Supreme Court reviewed case law and distinguished
this deficiency from other deficiencies it had found. The
Alaska Supreme Court determined this was not so deficient that
it couldn't correct it. She said the Alaska Supreme Court's
decision was a fairly discretionary and fact-based decision.
MS. MISCHEL emphasized that the court recognized the importance
of holding the petition summaries to a high level of accuracy
and impartiality, but found that there were differences in the
functions of the two summaries. Essentially, it "bent over
backwards" to allow the petition to go to a vote of the people
without having to go back and obtain new signatures. The Alaska
Supreme Court also reviewed whether the summary omissions
substantially misrepresented the essential nature of the
initiative, but found that it did not even though the felony
provisions were lacking. The court further found that the
petition proponents had spent a significant amount of time and
resources to gather the required signatures so the hardship was
great. However, the court discerned little hardship to the
initiative's proponents by allowing it to be corrected on the
ballot. This particular initiative is under review on a
different issue at the Superior Court level. She offered her
belief that this Alaska Supreme Court decision is significant in
terms of voter rights and has very little to do with the
constitutional issues on abortion rights.
12:12:02 PM
REPRESENTATIVE GRUENBERG suggested that the Alaska Supreme
Court's opinion seemed reasonable. He pointed out that the
primary issue of elections falls squarely with the House State
Affairs Standing Committee. He respectfully suggested that the
matter be referred to that committee.
REPRESENTATIVE KELLER objected for purposes of discussion. He
said that this is an issue of voters' rights and the Alaska
Supreme Court decided more or less that the people had a right
to vote on the matter. He suggested that bringing the matter
back to the House State Affairs Committee "as a handle" to get
to voters' rights question is weak. And to use this case to
start over on the parental consent issue, which is still
pending, would also be inappropriate.
REPRESENTATIVE HOLMES offered her belief that this issue is not
about abortion and she agreed with the analysis. She offered
her belief that this opinion is about what happens with
deficiencies in summaries and if the petition summary will be
thrown out or not. She did not think Representative Gruenberg
was suggesting sending the opinion to the House State Affairs
Standing Committee to take up a bill or action, but rather to
ensure this committee does not overstep its jurisdiction. She
acknowledged that the legislature has made it more difficult to
put ballot initiatives on the ballot and is sympathetic with
people who put a lot of time and effort into that process.
However, it was the lieutenant governor and not the initiative
sponsor who drafted the materials. She concluded that it would
be a serious burden to ask the initiative sponsors to start
over. Of the three issues raised, she agreed with the Alaska
Supreme Court that the most concerning oversight was that there
was no mention of criminal sanctions in it. She said the court
clearly indicated that sanctions were needed in going forward.
She suggested that the legislature should consider the issue,
when criminal penalties will be imposed, as to whether those
sanctions should be included in the summary. She opined that
those types of issues are the House State Affairs Standing
Committee could mull over.
12:16:28 PM
REPRESENTATIVE GRUENBERG indicated that he is merely concerned
with the jurisdictional matters and ensuring that this committee
does not overstep its jurisdiction. Furthermore, he said he did
not want to slight the chair of the House State Affairs Standing
Committee.
REPRESENTATIVE LYNN responded that he did not feel slighted, but
questioned the point of the committee hearing the matter if it
is not going to consider legislation.
REPRESENTATIVE GRUENBERG concluded that the committee could pass
on the referral.
12:18:01 PM
CHAIR GATTO moved on to the next case to come before the
committee, Weimer v. Continental Care and Truck LLC, 237 P.3d
610 (Alaska 2010).
REPRESENTATIVE GRUENBERG offered his understanding that
important statute of limitations issues surround the case. He
suggested that the administration should have time to consider
the matter. He further suggested that the committee table the
opinion and set this case aside until more information is
available.
CHAIR GATTO offered his understanding that the attorney general
believed it was too difficult to make a decision and it is up to
the legislature to decide whether the document fees were
allowable.
REPRESENTATIVE GRUENBERG clarified that the review was done by
the Legislative Legal Services not the attorney general. He
clarified that although the attorney general was not a party to
this litigation, he is in the process of reviewing the case. He
reiterated his suggestion that staff monitor the progress. He
related his understanding that the issue of when the period for
the statute of limitation begins for this particular statute,
which has significant ramifications for Unfair Trade Practices
Act, matters.
CHAIR GATTO offered his belief that the document fees were on
the form next to taxes and other fees, which was misleading to
consumers since it appeared to be government fees.
REPRESENTATIVE GRUENBERG offered his understanding, after
discussing the issue, that the question in the case is limited
to the statute of limitations and when it begins.
CHAIR GATTO asked for his view on when the statute of
limitations should begin.
REPRESENTATIVE GRUENBERG said he spoke to Ed Sniffen, Senior
Assistant Attorney General, Commercial/Fair Business Practices,
from whom he obtained the impression that this statute was
different than other statues, which typically rely on when the
person becomes aware that the fees were illegal. Subsequent
conversations left him feeling confused so Mr. Sniffen offered
to do some additional research.
CHAIR GATTO reiterated that the document fees were comingled so
they represent nothing but extra profits for dealers.
REPRESENTATIVE GRUENBERG suggested it could be tabled.
12:23:56 PM
REPRESENTATIVE LYNN offered his belief that the issue to
consider is when the statute of limitations starts, which is
separate from the question of fairness in terms of the fees.
However, when an individual discovers something wouldn't be a
time certain.
REPRESENTATIVE GRUENBERG concurred.
12:25:17 PM
MS. MISCHEL concurred with Representative Lynn's summary. She
said the Unfair Trade Practices' statute of limitations differs
from the common law discovery rule as Representative Gruenberg
pointed out.
CHAIR GATTO related that this has a two-year statute of
limitations and others may be longer. He pointed to a
hypothetical situation in which a consumer may discover medicine
caused harm 10 years later.
REPRESENTATIVE GRUENBERG offered his belief something of that
nature would be covered since the two-year limitation begins
when the plaintiff discovered or reasonably should have
discovered that the conduct broke the law. He pointed out that
it wouldn't be unreasonable to discover the health ramifications
of a drug some time later.
MS. MISCHEL concurred. In response to comments, she pointed out
that the Alaska Supreme Court was not reviewing when the harm
actually occurred. The discovery that something was illegal was
not the point at which the court was willing to start the
statute of limitations, although the court looks very clearly at
the dates of harm and in this case, the loss of the $200. The
court was unwilling to accept the proposition that because the
plaintiff didn't know it was illegal that the statute of
limitations was tolled, even though the loss occurred two and
one-half years earlier.
CHAIR GATTO asked whether consumers needed to go to small claims
court over illegal document fees.
MS. MISCHEL answered that the Alaska Supreme Court is not making
that judgment since the statute provides for other options, such
as complaints. The problem in this case is that the plaintiff
waited beyond the two-year period.
CHAIR GATTO summarized that the House State Affairs Standing
Committee has held discussions on whether fees should appear as
though they are taxes.
12:30:35 PM
CHAIR GATTO directed the committee's attention to the next case:
West v.State, 248 P.3d 689 (Alaska 2010).
12:31:23 PM
MS. MISCHEL reviewed the case for purposes of the oversight
report. She said her recommendation is for the legislature to
review the case to determine if the court correctly applied the
intensive game management statute. She explained that the court
primarily addressed the question of whether the sustained yield
requirement in Article VIII of the Alaska Constitution applies
to predators and the court determined that it did. She offered
her belief that Alaska is the only state in the U.S. with a
sustained yield constitutional provision. The statute merely
implements the sustained yield requirement. In addition to the
statutes, the Board of Game has administrative regulations and
predator control plans under scrutiny. The Alaska Supreme Court
determined that the plans, regulations, and the statutes all
correctly implemented the constitutional sustained yield
principle as it applies to control of wolves and bears in
specific game management units. The court analyzed the
intensive game management statutes in AS 16.05.255 in the same
way it analyzed the constitutional provisions. She concluded
that if the legislature is dissatisfied with the outcome or
finds it is contrary to legislative intent, the appropriate fix
would involve a constitutional amendment.
MS. MISCHEL said essentially, the court upheld both the predator
control plans that allow for aerial wolf hunting and high number
of bear yields in certain game management units to allow moose
and caribou populations to recover. The regulations provided
the same level of detail. The Alaska Supreme Court decided that
the sustained yield applied to predator populations but also
that the Board of Game implemented the sustained yield
principles even though the regulations adopted subsequent to the
2006 decision invalidating those regulations took out the
sustained yield language with respect to predator control. The
court found as a factual matter that the Board of Game adhered
to sustained yield principles without actually saying it.
12:35:20 PM
CHAIR GATTO asked whether the question of the Endangered Species
Act entered into any of the testimony. He related a scenario in
which there was a threatened moose population due to too many
bears or wolves. Since the aforementioned endangers the prey
population, he asked whether someone could apply the Endangered
Species Act if the state needs to reduce bears and wolves.
12:35:51 PM
MS. MISCHEL responded that the issue did not arise in this case.
CHAIR GATTO recalled that predator pressures threatened moose in
certain game management units. Although as a whole moose are
not endangered species, he recalled the situation in the Arctic
in which the total number of polar bears was increasing but
specific populations were not. The Endangered Species Act
allowed the removal of a portion of the land the size of
California as the normal range to protect them from hunting. He
recalled Yenlo Hills moose [counts] used to be 100 but are now
1, so ultimately the moose will disappear in the area. He
opined that it would make sense to protect the population in
specific areas as well as the overall population.
MS. MISCHEL explained that the Alaska Supreme Court generally
agrees with the principle, that certain game management units
and range of the animals were significant in determining
sustained yield. While the sustained yield principle is being
interpreted as a constitutional matter in terms of predator
population, the primary reason the court found that the aerial
killing of wolves and bears in specified units was consistent
with that principle is the court also found that the
constitution and the statutory framework for sustained yield
allowed for preferences for prey populations over predator
populations. She acknowledged part of that had to do with
beneficial use and the Board of Game found that human
consumption was the highest and best use of wildlife, in
general. In response to a question from Chair Gatto, she said
the term, "hunting" can apply to both predator and prey
populations. The intensive game management decisions and
statutes allowed for a higher number of predators to be taken in
some units than some biologists have deemed as sustainable.
However, the court found that the environmental value of
wildlife viewing over human consumption did not come up at the
Alaska Supreme Court level although it may have been raised at
the trial court level.
12:40:24 PM
REPRESENTATIVE KELLER asked for the reason for legislative
review.
MS. MISCHEL said that one of the four reasons for oversight of
cases for legislative consideration include whether the court
has modified or revised common law of the state, which happened
in this case.
CHAIR GATTO noted that the opinion states in conclusion, "We
AFFIRM the superior court's ruling regarding the applicability
of Alaska's sustained yield clause to predator populations ...."
The court went on to reverse a ruling that does not apply to
predator populations.
REPRESENTATIVE GRUENBERG inquired as to whether the case needed
to be referred to the House Resources Standing Committee.
CHAIR GATTO offered his belief that the case has been decided.
12:42:34 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), brought up
a recent challenge to the bail schedule revisions enacted in
2010. She reported that a lawsuit was filed the day before the
effective date of the legislation by a group of defense
attorneys, the Alaska Association of Criminal Defense Lawyers,
and three named defense lawyers versus the State of Alaska and
Dan Sullivan, in his capacity as attorney general. The
complaint was for both declaratory and injunctive relief and
sought a temporary restraining order to stop enforcement of
several provisions of the bail revision. The suit claimed 10
areas of the bail revision law were defective. The first was a
claim that the presumption of dangerousness and flight risks had
the effect of denying the right to bail as guaranteed by the
constitution. Another claim asserted that the requirement of
$250,000 bail for a second offense of methamphetamine
manufacturing charges violated the person's right to bail.
Another claim asserted that the cooling off period in domestic
violence, which prohibited a judge from allowing a person
charged with a crime involving domestic violence from returning
to the home of the victim for 20 days, violated the equal
protection clause of the constitution.
MS. CARPENETI explained the Department of Law's response, in the
case, was that the plaintiff's had not established irreparable
harms since the plaintiffs, the lawyers, argued that they were
not representing any particular defendants. The lawyers were
bringing this action on their own without having a person denied
bail or having a personal interest in the outcome of the case.
The superior court denied the temporary restraining order for
all except for the 20-day cooling off period for domestic
violence defendants. When the legislature passed the Domestic
Violence Prevention Act in 1998, it stipulated that the court
may not allow a person charged with the crime of domestic
violence to return to the home at all while the person is
released on bail. That provision was challenged in a lawsuit
decided in 2006, the Williams case, in which the Court of
Appeals decided the provision violated the constitutional right
to equal protection of the law. Thus, when the legislature
rewrote the bail statutes, it changed it to a 20-day cooling off
period. The trial court found that the provision was too
similar to one found invalid in the Williams case so it issued a
temporary restraining order from applying that provision of the
law, not only for that court but for all trial courts in Alaska.
She reported that the trial court ruled in favor of the state in
all other aspects in terms of the temporary restraining order.
MS. CARPENETI related that both parties petitioned to the Alaska
Supreme Court from the trial court's decision. The Alaska
Supreme Court vacated the superior court's decision as it
applied to other judicial officers of the state. She offered
the theory that the trial court can decide for its court but may
not impose that decision on other courts. Thus, the court
vacated the decision and denied the petitions in other respects.
The case returned to the trial court for the issue of
declaratory relief where the superior court granted the state's
motion to dismiss based on lack of standing by the plaintiffs.
The order was dated April 12, 2011, and the lawyers made a
motion for reconsideration, which was denied May 23, 2011, and a
final judgment was entered July 18, 2011, vacating the temporary
restraining order and granting final judgment in favor of the
state. She said at this point the decision has not yet been
appealed and the timeline has run out, although there are
provisions for the court to relax the deadline up to 60 days.
She said there is not any legislative action needed but offered
to answer any questions.
12:49:19 PM
REPRESENTATIVE GRUENBERG related his understanding that the
ultimate result was that the provision by the superior court on
the 20-day cooling off period was subsequently set aside because
the plaintiffs didn't have standing.
MS. CARPENETI clarified that it was vacated as it applied to
other superior court judges and officers. Later, the entire
case was dismissed for lack of standing by the defense lawyers.
In response to a question, she agreed the provision was denied.
REPRESENTATIVE GRUENBERG concluded then that the only order that
would potentially be out there was the 20 day cooling off
period.
MS. CARPENETI agreed. She added that other superior courts have
made decisions based on challenges made to the bail revision law
and have upheld that law, although they may be appealed to the
Court of Appeals. However, at this point other judges have
decided to uphold the bail revision challenges made to them
individually.
REPRESENTATIVE GRUENBERG remarked that it would likely be
premature for the committee to take any action.
MS. CARPENETI concurred, but related the department's desire to
inform the legislature since it was a substantial challenge.
12:51:06 PM
CHAIR GATTO, with respect to vehicle and document fees, stated
that the amount of paperwork is a quarter of an inch thick, so a
person may not notice the document fee. He asked whether the
committee should determine that the statute of limitations
begins when a person discovers the illegal fee.
MS. CARPENETI declined to respond. She then referred to a
second lawsuit recently decided, the American Booksellers
Foundation et al v. Daniel Sullivan, in his capacity as attorney
general.
12:53:30 PM
MS. CARPENETI noted that this involves statute changes
prohibiting the distribution of indecent materials to minors
under AS 11.61.128. She explained that although the changes
were adopted in Senate Bill 222, a substantial amount of work
was done in its companion bill, House Bill 298 in the House
Judiciary Standing Committee. She related there are several
ironies since Senate Bill 222 narrowed the scope of the statute
prohibiting the distribution of indecent materials to a minor.
She explained that the bill prohibited a person over the age of
18 years of age from distributing material that depicts certain
prescribed conduct, such as sexual penetration, to a person
under 16 or to a person the defendant believes is under 16 years
of age, and the material must be harmful to minors. The House
Judiciary Standing Committee added the element that the state is
required to prove beyond a reasonable doubt to AS 11.61.128,
which is why the work done in the committee actually narrowed
the effect of the law. The standard for proving whether the
material is harmful is a three-part definition, which first
requires the state to prove that the average individual applying
contemporary community standards would find the material taken
as a whole, appeals to the prurient interest in sex in persons
under 16 years of age. Second, the state would have to prove
that a reasonable person would find that the material taken as a
whole lacks serious, artistic, literary, educational, political,
or scientific value for persons under 16 years of age. Third,
the state would have to prove the material depicts actual or
simulated conduct in a way that is patently offensive to the
prevailing standards in the adult community with respect to what
is suitable for a person under 16 years of age. She highlighted
that [the aforementioned] element was added in the House
Judiciary Standing Committee to what the state is required to
prove when prosecuting a person under this statute.
MS. CARPENETI pointed out several things that were disappointing
in the process. She recalled a representative from the Alaska
Civil Liberties Union (ACLU) gave an opinion that he thought
with the additions made in the House Judiciary Standing
Committee that the statute would probably withstand
constitutional muster. Another disappointment was that this
statute was litigated in federal court and the state had asked
the federal district judge to certify the question to the Alaska
Supreme Court asking them to interpret the statute according to
Alaska law. Unfortunately, the court declined to take that
question, she said.
12:57:12 PM
REPRESENTATIVE GRUENBERG asked if the federal judge refused to
certify it or did the Alaska Supreme Court refuse to accept the
certification.
MS. CARPENETI responded that the federal judge certified the
question and the Alaska Supreme Court refused to address the
matter without opinion, which she opined wasn't that unusual.
She said that no rationale was given. The main claim of the
lawsuit was that the statute was overbroad, which occurs when it
prohibits constitutionally protected conduct as well as conduct
that can be legitimately regulated by the state. The claim was
that contemporary community standards of the definition of
"harmful to minors" was overbroad and vague, that there was no
distinction between what might be harmful to an older minor
still under the age of 16 as compared to a younger minor, that
it was not the least restrictive alternative to regulate this
behavior and that the culpable mental states were unclear and it
was not absolutely clear the defendant must know the contents of
the material that he/she is distributing. And it wasn't clear
that the defendant knew or was reckless regarding the age of the
recipient of the materials. There was also a claim that the
statute inhibited interstate commerce, which she thought was
unusual.
MS. CARPENETI related that the state's response was that Senate
Bill 222 narrows the focus of AS 11.61.128, the state has a
compelling interest in the safety of its children, and that the
statute was narrowly tailored and the least restrictive
alternative under the circumstances since it only restricts
certain specified images to be distributed. The department felt
the "harmful to minors" definition that was adopted by the
legislature met the U.S. Supreme Court decisions of Miller and
Ginsburg in upholding the definition. The state also argued
that the claim the statutes didn't differentiate between an
older group of minors versus a younger group of minors was
irrelevant since if it isn't harmful to a certain group of
minors it would not be found harmful to minors. In terms of the
Commerce Clause, the state's argument was that the state has
jurisdiction to protect its citizens and even if the defendant's
conduct is carried out outside the state, the state still has
jurisdiction if the victim is in Alaska. She pointed out that
is statutory and decisional law.
MS. CARPENETI related the Alaska Supreme Court decided that the
court has a compelling interest in the safety of its children,
and it upheld the "harmful to minors" definition finding
indicating the definition does meet the U.S. Supreme Court
decision in Miller and Ginsburg. However, it ultimately held
that the statute was overbroad and prohibited constitutionally-
protected conduct in addition to conduct not protected. She
said it invalidated the statute not only as the language had
been changed in Senate Bill 222, but as it had been before the
amendments to the bill. The department will consider its
options, but will likely suggest changes to the statutes to
address this issue since currently the state cannot enforce the
law, she said.
MS. CARPENETI, in response to Chair Gatto, answered that the
statute prevented distribution of materials to persons under 16.
One concern raised was that minors ages 13-14 may have different
interests than minors ages 7-8. She reiterated that the state's
argument was that if the materials were not harmful to any group
of minors it would not be deemed harmful to any minors. She
clarified that the Alaska Supreme Court upheld the definition
she believed was added in the House Judiciary Standing Committee
requiring that in order for materials to be illegal they had to
be considered harmful to minors.
REPRESENTATIVE GRUENBERG inquired as to whether the state is
considering an appeal.
MS. CARPENETI responded that the Department of Law is not
planning to appeal the decision since it does not think its
chances are good to prevail in the Court of Appeals.
1:03:19 PM
REPRESENTATIVE GRUENBERG said he had not considered the court
rule that allows a federal court to refer a question of law to
the Alaska Supreme Court. Currently, the Alaska Supreme Court
has discretion on whether to accept the referral. He
acknowledged that he has not personally been involved in a case
where that issue arose. However, he questioned whether the
legislature or perhaps the court's Appellate Rules Advisory
Committee ought to address establishing standards. In instances
in which the federal court has considered it an important enough
question to refer to the Alaska Supreme Court, he further
questioned whether the court should have complete discretion on
the referral.
MS. CARPENETI acknowledged that she is not that familiar with
this area of the law. She indicated a willingness to research
the issue further.
1:05:45 PM
MS. CARPENETI then referred to a case that involved a person,
Mr. Bridge, who was charged and convicted of escape in the
second degree in violation of AS 11.56.310, which prohibits a
person from removing him/herself from a correctional facility
while under official detention. Mr. Bridge had been charged
with driving with a license suspended, which is a misdemeanor.
He was unable to make the bail set by the court and since the
Fairbanks jail was full he was placed in the Northstar Center,
which is a halfway house or is used to house people in similar
circumstances. Mr. Bridge eventually walked away from the
Northstar Center and was charged and convicted of escape in the
second degree. The conviction was appealed to the court of
appeals, which reversed the conviction, finding that the
definition of "correctional center" in law is defined as "a
correctional facility or premises used for confinement of
persons under official detention." She related that although
the term "official detention" is defined in statute very
broadly, the term "confinement" is not. Although the Mr. Bridge
was told he was not to leave, the Northstar Center was not
gated, or guarded, and did not have any constraint mechanisms in
place. Additionally, the staff had been trained to not
intervene except to call the police, so his housing at Northstar
Center was not considered constituting confinement. Thus, the
conviction was reversed. Ms. Carpeneti reported that the
Department of Law has appointed a committee of prosecutors to
review the case and make recommendations, but hasn't yet
formulated any recommendations yet.
1:09:09 PM
REPRESENTATIVE GRUENBERG, referring to the opinion that was a
2:1 decision, related his understanding the DOL is not appealing
the decision.
MS. CARPENETI answered that the state does not have a right to
appeal. Although the state could petition for review in the
Alaska Supreme Court, it will not do so.
1:09:50 PM
REPRESENTATIVE GRUENBERG suggested that the committee ask the
attorney general to provide results of its review.
REPRESENTATIVE HOLMES concurred.
REPRESENTATIVE GRUENBERG then referred to the case Hertz v.
Carothers, 225 P.3d 471 (Alaska 2010) located on page 7 of the
December 2010 Report to the Twenty-Seventh Legislature that's
included in members' packets to. He read:
The state was awarded attorneys' fees after Hertz lost
a lawsuit against the state. The state attempted to
execute on Hertz's prisoner trust account and directed
the Alaska State Troopers to serve the writ of
execution on the superintendent of Spring Creek
Correctional Center and the notices of execution on
Hertz. The trooper served all of the paperwork on the
superintendent and did not serve Hertz with any
paperwork. Sometime later the state faxed copies of
the paperwork to the institution and a guard served
the faxed paperwork on Hertz. Although Hertz
eventually received actual notice of the execution,
the Alaska Supreme Court found that Hertz had not been
properly served as required by statute or court rule
and the execution could not proceed.
Hertz v. Carothers, 225 P.3d 571 (Alaska 2010)
Legislative review is recommended to determine if the
legislature should provide specific guidance and
procedures for service of process on prisoners in
state correctional facilities, or should include
prison guards in the definition of "peace officer" for
purpose of process under Rule 4, Alaska Rules of Civil
Procedure.
1:12:35 PM
GERALD LUCKHAUPT, Assistant Revisor of Statutes, Legislative
Legal Counsel, Legislative Legal and Research Services,
Legislative Affairs Agency (LAA), explained that he wrote the
review since he thought the legislature should consider the
matter. The court rules that pertain to service of process
don't envision service of process on a prisoner. The
legislature might wish to address that in order to preclude
similar situations from arising.
REPRESENTATIVE GRUENBERG concurred. He suggested that the
committee request Mr. Luckhaupt make recommendations and to send
the commissioner of the Department of Corrections a similar
letter asking for recommendations. He further suggested that
the House Judiciary Standing Committee may wish to introduce a
bill addressing the matter.
1:14:08 PM
REPRESENTATIVE LYNN asked what ramifications broadening the
definition of "peace officer" may have.
CHAIR GATTO responded that the suggestion is to add prison
guards to the definition of "peace officer."
REPRESENTATIVE LYNN expressed concern that to add prison guards
to the definition of "peace officer" may have ramifications in
other circumstances in state law.
1:14:55 PM
REPRESENTATIVE GRUENBERG suggested that instead of changing the
definition of "peace officer" one way to address the issue would
simply be to clarify that the service of process could be done
by a peace officer or a correctional officer.
CHAIR GATTO acknowledged that if the definition of "peace
officer" was broadened it could affect contract negotiations.
REPRESENTATIVE GRUENBERG reiterated that the change would only
be made to Rule 4, Alaska Rules of Civil Procedure.
MR. LUCKHAUPT clarified that he was not suggesting a broad
change in definition of "peace officer" but instead would be
referring directly to service of process. He clarified that the
definition of "peace officer" for purposes of the serving
process on a prisoner could include correctional officers or
could refer to them separately.
1:16:29 PM
MR. LUCKHAUPT referred back to Ms. Carpeneti's remarks and noted
that the case on official detention will be in the oversight
report for the coming year. He recommended review of the case,
noting the discussion in the dissent provides relevant
information on how the case should have been resolved. He hoped
the committee could address the case during the upcoming regular
legislative session.
1:17:59 PM
QUINLAN STEINER, Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), stated, with
respect to the issue of Mr. Bridge's case, that some
inconsistencies in the level of crime for escapes exists. He
related that Mr. Bridge was originally convicted of a "B" felony
for walking away from what was essentially a halfway house.
However, if the behavior had occurred in a courtroom with public
safety officers present, the offense would have been a "C"
felony. He stated that Mr. Bridge was ultimately convicted of a
misdemeanor. He suggested that the consistency be addressed
when the legislature reviews the case. He characterized the
discrepancy as a quirk in the current language. In response to
a question, he answered that electronic monitoring is typically
used for misdemeanor cases. He elaborated that the level of the
escape would depend on the circumstances and whether the crime
included use of a weapon to escape. Again, in this case Mr.
Bridge had been initially charged with a misdemeanor, which was
advanced to a "B" felony due to the escape, but if he had been
in court or incarcerated the escape would have been advanced to
a "C" felony.
1:21:00 PM
REPRESENTATIVE GRUENBERG suggested that the committee obtain
more information on the escape statutes for consistency.
MR. LUCKHAUPT agreed to do so.
REPRESENTATIVE HOLMES recalled Ms. Carpeneti had a group of
prosecutors reviewing the Bridge case and she hoped that the
public defender would also be included in the discussion.
MS. CARPENETI, in response to a comment, agreed to include the
public defender in the discussions.
1:23:20 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 1:23 p.m.