Legislature(1993 - 1994)
02/19/1993 01:41 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
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SENATE JUDICIARY COMMITTEE
February 19, 1993
1:41 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator Dave Donley
Senator Suzanne Little
MEMBERS ABSENT
Senator George Jacko
COMMITTEE CALENDAR
SENATE JOINT RESOLUTION NO. 6
Proposing amendments to the Constitution of the State of
Alaska authorizing the use of the initiative to amend the
Constitution of the State of Alaska by approval of
two-thirds of the votes cast on the proposed amendment.
SCHEDULED BUT NOT HEARD THIS DAY.
SENATE JOINT RESOLUTION NO. 8
Proposing amendments to the Constitution of the State of
Alaska relating to capital projects and loan appropriations,
and to the expenditure limit.
SCHEDULED BUT NOT HEARD TODAY.
SENATE BILL NO. 49
"An Act relating to preelection reports; closing the two-day
reporting gap in those reports; setting the date of February
15 for filing year-end campaign finance reports; and
requiring reporting of zero year-end reports."
SCHEDULED BUT NOT HEARD TODAY.
SENATE BILL NO. 19
"An Act relating to the crime of conspiracy."
SENATE BILL NO. 64
"An Act relating to civil liability for workplace safety
inspections; and providing for an effective date."
PREVIOUS SENATE COMMITTEE ACTION
SJR 6 - See State Affairs minutes dated 1/25/93 and 1/27/93.
See Judiciary minutes dated 2/17/93.
SJR 8 - See State Affairs minutes dated 1/27/93. See
Judiciary minutes dated 2/15/93.
SB 49 - See Senate State Affairs minutes dated 1/29/93.
See Judiciary minutes dated 2/17/93.
SB 19 - NONE
SB 64 - See Labor & Commerce minutes dated 2/4/93 and
2/9/93.
WITNESS REGISTER
Jerry Luckhaupt, Attorney
Legislative Legal Counsel
Legislative Affairs Agency
130 Seward Street #401
Juneau, Alaska 99811
POSITION STATEMENT: Drafted SB 19.
Dean Guaneli, Chief
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Supported SB 19.
C. E. Swackhammer, Deputy Commissioner
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Supported SB 19.
Kent Swisher, Executive Director
Alaska Municipal League
217 Second Street, Suite 200
Juneau, Alaska 99801
POSITION STATEMENT: Supported SB 64.
Kevin Dougherty
2501 Commercial Drive
Anchorage, Alaska 99501
POSITION STATEMENT: Opposed SB 64.
Mike Schneider
880 N Street, #702
Anchorage, Alaska 99501
POSITION STATEMENT: Opposed SB 64.
Eric Sanders
500 L St., STE 400
Anchorage, Alaska 99501
POSITION STATEMENT: Opposed SB 64.
James Pfeifer, President
Alaska National Insurance Company
7001 Jewel Lake
Anchorage, Alaska 99503
POSITION STATEMENT: Supported SB 64.
Paul Arnoldt, Director
Division of Workers' Compensation
Department of Labor
P.O. Box 25512
Juneau, Alaska 99802-5512
POSITION STATEMENT: Supported SB 64.
Mike Ford, Attorney
Legislative Legal Counsel
130 Seward Street
Juneau, Alaska 99811
POSITION STATEMENT: Drafted SB 64.
ACTION NARRATIVE
TAPE 93-14, SIDE A
Number 001
Chairman Robin Taylor called the Judiciary Committee meeting
to order at 1:41 p.m.
SENATOR TAYLOR brought SB 19 (CRIME OF CONSPIRACY) before
the committee, and invited the prime sponsor, SENATOR
HALFORD, to review the bill.
SENATOR HALFORD explained the bill, which was also
introduced last year, would make the crime of conspiracy a
separate crime, and would drop the crime classification down
one from the actual crime resulting from the conspiracy. He
said it was a law enforcement tool, available on the federal
level and in nearly every other state in the union.
SENATOR DONLEY supported the concept of the legislation and
had sponsored similar legislation in the past. He praised
the work done on the concept in House Judiciary last year,
in refining to more closely parallel some of the provisions
of the Uniform Act.
SENATOR DONLEY also gave credit to DEAN GUANELI, from the
Criminal Division of the Department of Law, for providing
him comfort for the concept of conspiracy, one of which was
to add a provision making it was an affirmative defense if a
law enforcement official was the only other person.
Otherwise, he said, you have the potential for police
officers creating the conspiracy, by offering to conspire
with the perpetrator.
Number 097
SENATOR DONLEY noted some additional provisions dealing with
the issue of conspiracies creating multiple crimes, and he
explained the language in the previous bill that solved the
problem. Another change, he said, was to better define
"overt act," and he gave an example of the definition.
Additionally, SENATOR DONLEY worked on the duration of the
conspiracy, and how it is terminated. He discussed language
that had been developed previously, and noted the wording
had been expanded since last year.
SENATOR DONLEY concluded by describing testimony on how
people could withdraw from a conspiracy. They originally
agreed to a conspiracy, and how do they make it clear they
don't want to have anything to do with it. Are they pulling
out before the crime actually occurs, before the overt act?
SENATOR DONLEY explained they had added a section on
governing limitation actions, and adding some criteria for
abandoning the conspiracy agreement. He said it would
encourage people to come forward to warn society a
conspiracy is taking place and to terminate their
involvement.
SENATOR HALFORD directed the drafter, JERRY LUCKHAUPT, to go
through the bill.
Number 187
MR. LUCKHAUPT reviewed the bill section by section,
beginning with Section 1, Subsection (a), which defines
"conspiracy" and "overt act." Subsection (b) explains guilt
by association, and he gave an example to clarify the
situation of multiple offenders.
MR. LUCKHAUPT explained Subsection (c) outlines various
situations which are not offenses to the crime of
conspiracy. He said Subsection (d) provided an affirmative
offense to the crime of conspiracy when dealing with a
person for whose conduct the defendant is not legally
accountable under AS 11.16.120(b).
MR. LUCKHAUPT said (e) provides the withdrawal discussed
previously by SENATOR DONLEY, affirmative defenses for a
person withdrawing from the offense, and sets forth the
process of withdrawing from the crime. Subsection (f) lists
the penalty provisions depending on the level of crime being
conspired, and stepping down one felony classification. He
gave an example to provide definition to "serious felony
offense" in Subsection (g).
Number 260
MR. LUCKHAUPT summarized Sections 2, 3, and 4 as being
technical amendments to recognize conspiracy as being
similar to solicitation and attempts to commit offenses. He
said Section 5 is basically a technical amendment setting
forth the penalty for conspiracy.
SENATOR LITTLE clarified there was no provision in the bill
for a police officer being the second person involved in a
two person conspiracy. MR. LUCKHAUPT said he did not hear
the explanation by SENATOR DONLEY, and suggested that MR.
GUANELI could give a better answer.
SENATOR DONLEY asked if the points he raised were resolved
in case law. MR. GUANELI said there was no prohibition
against the second person in a conspiracy being a police
officer. He explained he was not familiar with the House
Judiciary version of the previous conspiracy bill, but he
shared his opinion about peace officers being the second
person in a conspiracy.
MR. GUANELI outlined cases that would be assisted by the
conspiracy law: murder, kidnapping, arson, and drug cases.
He explained that some cases such as sexual abuse and rape
are rarely subject to conspiracy prosecution. He thought it
would be rare in drug offenses to have a police officer be a
party to a conspiracy, because it would be stopped before
the sale or transfer. With respect to murder cases, the
police might want to stop that offense before an attempt
takes place, and he gave a plausible example.
Number 356
SENATOR HALFORD continued with MR. GUANELI'S example, which
he claimed would not work. They worked on a different
example.
SENATOR DONLEY explained the provision was to address an
overt act being committed by the police officer. MR.
GUANELI thought that fewer problems are probably caused by
officers committing overt acts than would be created by
eliminating police officers as second person candidates in a
conspiracy.
SENATOR DONLEY expressed concerns at the entrapment when the
officer is the co-conspirator, and MR. GUANELI agreed, but
said that law wouldn't be changed with that bill. He
claimed the state would still have the burden of proving the
entrapment did not occur. SENATOR HALFORD expressed his
concerns with their example and entrapment.
Number 397
SENATOR DONLEY was still troubled with having a third party,
who was not an active conspirator, and he explained his
concerns about the theory of conspiracy, the intent, and the
act. He debated the true co-conspirator as opposed to the
person who is doing the intent but not the act.
Number 407
MR. GUANELI said he viewed the elements of the crime as
written in the bill as the intent, and the act would be the
agreement between two people. In addition, he discussed how
the offense would transpire.
SENATOR TAYLOR suggested it might be difficult to establish
before a jury that the officer was the one doing the overt
act, and it might be a weak case.
SENATOR TAYLOR led a continuing discussion with the
committee and MR. GUANELI of overt acts, conspiracy, police
officers as co-conspirators, possible abuses, entrapment,
murder, intimidation, enticement, and frustration.
SENATOR HALFORD said he would like to leave the problem of
"overt act" open for further discussion, and SENATOR DONLEY
thought it should be done in a cautious manner. He played
the "devil's advocate" to present the other side.
Number 531
SENATOR TAYLOR invited C.E. SWACKHAMMER, from the Department
of Public Safety, to testify on SB 19.
MR. SWACKHAMMER spoke for all of Public Safety in support of
the conspiracy bill, and he noted a couple of points that
paralleled general statutes. He said it would allow Public
Safety a tool to reach participants in crimes, they are not
presently able to reach. He described the example of a case
involving a substantial amount of drugs and many
participants, but without the conspiracy tool, they were
unable to pull everyone together.
MR. SWACKHAMMER explained the legislation would assist in
trials with multiple defendants, where the defendants are
severed and the jury never hears the total story - only
pieces.
SENATOR DONLEY agreed with the problems outlined by MR.
SWACKHAMMER, and he noted some progress in bills from last
year.
SENATOR TAYLOR announced SB 19 would be held in committee.
He noted that DEBORAH GRAVO, and RAY BROWN in Anchorage had
comments, and he invited them to try again when the bill is
re-scheduled.
Number 568
SENATOR TAYLOR presented SB 64 (IMMUNITY FOR SAFETY
INSPECTIONS) sponsored by the Senate Labor and Commerce
Committee, and he introduced the participants in Anchorage
on the teleconference network.
For the first witness, SENATOR TAYLOR called on KENT
SWISHER, Executive Director for the Alaska Municipal League,
to testify.
Number 568
MR. SWISHER expressed the support of the members in the
Alaska Municipal League for the concept of SB 64 and to ask
for an extension to cover a situation affecting local
governments. He described a league sponsored group called
the Joint Insurance Association, which provides joint self-
insurance to about 70 municipalities.
MR. SWISHER stated the core of the insurance program was on
site safety inspections for their members, and he explained
how it was not always possible to be aware of all possible
risks in an inspection. He thought the safety inspectors
made a good faith effort to locate risks to employees, to
bring those risks to the attention of management, and to
suggest corrections. MR. SWISHER said they should have
protection for those things they cannot possibly know.
MR. SWISHER asked for an expansion of the bill to include a
self-insured employer, or a self-insurance association.
SENATOR TAYLOR discussed with MR. SWISHER the possible
changes in the language on page 1, line 7, after the word,
"employer," to insert the words, "a self-insured employer or
a joint self-insurance association."
TAPE 93-14, SIDE B
Number 001
MR. SWISHER said the words would also have to be inserted on
line 9 after "association's," to cover their insurance
association.
There was some discussion on a couple of committee
substitutes, and SENATOR DONLEY asked if MR. SWISHER if he
thought the legislation would apply to local governments,
also. MR. SWISHER didn't think it would in its present
form, but he thought the amendments would cover their
association, which is a corporation separate and distinct
from the Alaska Municipal League. He gave some expanded
history on the self-insurance pool.
SENATOR TAYLOR clarified MR. SWISHER'S proposed amendment,
and asked if he thought it would work for pools created for
schools. MR. SWISHER presumed it would - if they organize
as did the league insurance pool.
SENATOR DONLEY asked MR. SWISHER how the phrase,
"intentional act" applied to the liability of his safety
program, and whether his pool should be held to some degree
of competence in their safety inspections.
MR. SWISHER responded they were not depriving the injured
worker of coverage. He explained they were dealing with the
question of whether the individual, or the firm that
preformed the inspection, was liable to the employer, whose
premises were inspected. He used his 26 years of safety
work to claim that every single hazard could not be
identified, and he expanded on all sorts of possible
situations.
Number 037
SENATOR DONLEY and MR. SWISHER held a lengthy discussion on
the misconduct, the appropriate rule of reason, gross
negligence, standards, intentional conduct, and relieving
the inspector of liability to the municipality, if the
inspector fails to find the danger.
MR. SWISHER said insurance was a wager on the law of large
numbers, and he gave some examples. He also gave some
options used to minimize risks and make it better than a
wager.
SENATOR DONLEY expressed concerns the legislation would make
things worse than they are now, and he used "reckless
inspections" as a high standard of care. He thought the
safety problem was being made worse.
MR. SWISHER claimed his amendment would encourage the
conduct of inspections of all, as opposed to not making the
inspection in the first place. SENATOR DONLEY questioned
MR. SWISHER about possible problems, and he testified the
insurance pool hadn't gotten burned yet. SENATOR TAYLOR
said it was very possible to get burned.
Number 106
SENATOR DONLEY asked MR. SWISHER if there had been an
increase in accidents, in rates, and cases filed. SENATOR
TAYLOR clarified the question, and MR. SWISHER said they had
never been sued as the result of an inspection by the
league's insurance association. SENATOR DONLEY said that
was part of the answer he was seeking.
SENATOR DONLEY questioned MR. SWISHER about the workers
compensation, keeping people safe in the work place, and
whether he was aware of places where the safety inspections
were stopped.
MR. SWISHER wanted to be sure everyone understood the
service he represented was for 70 of the smaller
municipalities, who were not conducting inspections of their
own before they became involved with the league's insurance
pool. He said they did 20 inspections a year in a 2.5 year
cycle, and he said that sooner or later, the problem would
arise.
Number 153
SENATOR TAYLOR switched to the teleconference in Anchorage,
where DEBORAH GRAVO said she was just there to observe.
Next he called on KEVIN DOUGHERTY to testify.
MR. DOUGHERTY explained he was general counsel for the
Alaska Labor's Union and for eleven years a member of the
Board of Compensation ad hoc Committee, which has been
involved in much of the legislation for the last decade. He
though there was more protection now for the injured worker,
but the rates for the employers for the past 5 years had
gone down 19.2%. He explained how they had been able to
avert a crisis in the worker's compensation.
MR. DOUGHERTY said SB 64 originated from a 1991 bill, SB
219, and he explained SB 64 leaves the injured worker out of
the workers' compensation system. He brought the 1989 Van
Biene v. ERA Helicopters, Inc. decision before the
committee, to stress the injured workers could not be left
behind. He reviewed some of the history of the worker's
compensation act where injured workers gave up the right to
sue in trade for being supplanted by the worker's
compensation system for benefits.
MR. DOUGHERTY explained the impact of the Van Biene case on
the insurance industry, and he suggested another publication
on the same issue. He finished by explaining problems with
the worker's compensation system, and suggested JAMES
PFEIFER could verify prior legislation. MR. DOUGHERTY
agreed with SENATOR TAYLOR'S comment as to the need for more
study on the legislation.
SENATOR TAYLOR, in addressing MR. DOUGHERTY'S concerns, said
they were in a separate bill. He narrowed his focus to the
safety of inspections, only.
SENATOR TAYLOR asked the participants in Anchorage if they
had received copies of the proposed committee substitutes,
and he explained the latter of the two committee substitutes
places this legislation back in Title 23, which should avoid
some of the concerns raised by MIKE SCHNEIDER in the last
hearing.
MR. SCHNEIDER had received a copy of the bill. He said the
bill provides a broad immunity beyond reason, and does not
narrowly limit it to claims by injured workers, whose claims
are immunized under current law. He said there was no dual
capacity doctrine in the State of Alaska, thus, prohibiting
an injured worker from suing the employer as a safety
inspector.
MR. SCHNEIDER continued to express his concerns over the
bill, and he suggested the committee was being asked to
immunize stupidity to the detriment of injurer workers. He
said the bill as drafted protects wrong doers from claims,
which he listed. MR. SCHNEIDER concluded by saying the
committee shouldn't immunize wrongful conduct.
Number 291
SENATOR TAYLOR said he had three drafts of SB 64, which were
drafted to answer the issues MR. SCHNEIDER had raised in the
previous hearing, and he reviewed the proposals. He asked
MR. SCHNEIDER for his preference, if any.
MR SCHNEIDER said as long as it immunizes the inspectors
from negligent conduct, all of the legislation has the same
problems.
SENATOR TAYLOR next called on ERIC SANDERS in Anchorage to
testify.
Number 340
MR. SANDERS introduced himself as a plaintiff's personal
injury attorney, and gave examples for opposing the
legislation.
(The teleconference site was closed down before the
conclusion of testimony from MR. SANDERS in Anchorage.)
SENATOR TAYLOR explained he planned to reply to MR. SANDER'S
concerns, as well as those expressed by others. He drew
attention to page 1, line 9, which says, "The worker's
compensation carrier is not liable for civil damages for an
injury to an employee of that employer." He said it did not
immunize that carrier or employer from the damages caused by
their employee.
SENATOR TAYLOR next invited JAMES PFEIFER, President of
Alaska National Insurance Company, to testify.
Number 420
MR. PFEIFER responded to testimony made before the Labor and
Commerce Committee in a prior meeting, included comments on
the Van Biene case, safety inspections, expanding the scope
to third party lawsuits, and placement in Title 21 instead
of Title 23. He pointed to previous testimony indicating
the situation as it is today in Alaska, generally prevails
throughout the country. MR. PFEIFER denied that was the
case, and he rebutted their testimonies to the satisfaction
of SENATOR TAYLOR.
MR. PFEIFER made a few more supportive remarks and urged the
passage of the bill.
Number 480
SENATOR TAYLOR reviewed the purpose of the legislation and
the latest committee substitute. He asked if safety
inspections had been curtailed, and MR. PFEIFER said they
had curtailed theirs, but continued some safety inspections,
although not to the extent as prior to the Van Biene case.
MR. PFEIFER said if SENATOR DONLEY were still in committee,
he would let him know they have been sued similar to Van
Biene, and settled out of court at a high cost. He thought
there were potentially other cases out there, - with a high
dollar cost.
Number 509
SENATOR TAYLOR and MR. PFEIFER continued to discuss the
issues, allegations, and compensation in the Van Biene case.
TAPE 93-15, SIDE A
Number 001
SENATOR TAYLOR welcomed PAUL ARNOLDT, Director of the
Division of Workers' Compensation in the Department of
Labor, who had come to testify on SB 64.
MR. ARNOLDT pointed out the sequence of bills suggested the
impression the legislation would limit the liability of the
individual who was doing the inspection. SENATOR TAYLOR
asked him to work off the committee substitute, Ford, dated
2/19/93.
MR. ARNOLDT read aloud the first sentence of the committee
substitute, and opined it sounded as if it was what the
legislation was trying to prevent. SENATOR TAYLOR read
another portion which seemed to contradict MR. ARNOLDT'S
opinion, and he rebutted it with the citation of 23.30.090.
There was some discussion on his rebuttal.
Number 048
SENATOR TAYLOR asked MR. FORD to address the opinion, and
MR. FORD was not sure there was coverage if the independent
person was acting as the agent of the insurer. MR. FORD
suggested some alternate language, but he was not convinced
there was a problem. SENATOR TAYLOR directed him to check
to see if an amendment would be necessary.
MR. ARNOLDT didn't think it was a workers' compensation
issue, in terms of the division.
SENATOR TAYLOR asked if the division had a position on SB
64, and MR. ARNOLDT quoted the Department of Labor as
supporting the types of inspections that are contemplated in
the bill. He also quoted the department as seeing the
legislation as a vehicle to prevent the individuals
conducting the inspection, from being held to a liability
that was never intended.
MR. ARNOLDT said if that was corrected, the legislation
would be satisfactory to the Department of Labor. SENATOR
TAYLOR affirmed that was his intent, as well as that of the
sponsor.
SENATOR TAYLOR asked MR. FORD for a summary on the most
recent committee substitute for the legislation.
Number 112
MR. FORD said it was unfortunate that all of the parties
didn't have the latest draft, since he thought it solved
many of the problems that were discussed. He said the final
draft was the result of several evolvements, and now focused
on the narrow issue of "injury to an employee, the employer,
and the employee's option to sue for the damages."
MR. FORD recommended a word change in the latest draft to
"carrier" instead of "insurer," since carrier is defined in
workers' comp. He addressed the municipal insurance pool,
and said he discussed it with a person from that office, who
agreed the legislation took care of his problem.
Both SENATOR TAYLOR and SENATOR HALFORD wanted to know why
the legislation was back under Title 23, and whether that
was a better place. MR. FORD thought the discussion on
where to place the legislation was misleading, since, he
said, placement is not as important as substance, and he
explained the reasoning. He said the ultimate decision
would be made by the revisor of statutes.
SENATOR TAYLOR asked MR. FORD if he had heard the testimony
from the participants in Anchorage, and did he think they
were looking at the same bill? MR. FORD did not think they
had the latest version, and thought it would have affected
their comments on the scope of the immunity.
Number 170
There was a final discussion with MR. FORD using possible
examples. MR. FORD said it was correct that under common
law, you would be able to sue the inspector, if that person
was negligent. He said it was up to Senate Judiciary to
decide if, in fact, that is good policy, and he quoted some
of the testimony as being a trade-off.
SENATOR TAYLOR pushed for an answer to his example, and MR.
FORD explained under what circumstances a person would have
immunity. They discussed third party negligence.
There was no one else wishing to testify. SENATOR TAYLOR
said he planned to move the bill on Monday, February 22.
There being no further business to come before the
committee, the meeting was adjourned at 3:30 p.m.
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