Legislature(2021 - 2022)BUTROVICH 205
02/08/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Covid-19 Disaster Declaration, Extensions, Vaccine Liability | |
| Confirmation Hearings | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 8, 2021
1:32 p.m.
MEMBERS PRESENT
Senator Lora Reinbold, Chair
Senator Mike Shower, Vice Chair
Senator Shelley Hughes
Senator Robert Myers
Senator Jesse Kiehl
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
COVID -19 DISASTER DECLARATION~ EXTENSIONS~ VACCINE LIABILITY.
- HEARD
CONFIRMATION HEARING(s):
State Commission for Human Rights
Cynthia Erickson - Tanana
Betsy Engle - Fairbanks
- CONFIRMATIONS ADVANCED
Alaska Judicial Council
Kristie Babcock - Soldotna
- CONFIRMATION ADVANCED
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
SCOTT JORDAN, Director
Division of Risk Management
Department of Administration (DOA)
Juneau, Alaska
POSITION STATEMENT: Answered questions during consideration of
COVID-19 Disaster Declaration, Extensions and Vaccine Liability.
KELLY TSHIBAKA, Commissioner
Department of Administration (DOA)
Juneau, Alaska
POSITION STATEMENT: Answered questions during consideration of
COVID-19 Disaster Declaration, Extensions, Vaccine Liability.
ACTION NARRATIVE
1:32:33 PM
CHAIR LORA REINBOLD called the Senate Judiciary Standing
Committee meeting to order at 1:32 p.m. Present at the call to
order were Senators Myers, Hughes, Kiehl, Shower, and Chair
Reinbold.
^COVID-19 Disaster Declaration, Extensions, Vaccine Liability
COVID-19 DISASTER DECLARATION, EXTENSIONS, AND VACCINE LIABILITY
1:33:06 PM
CHAIR REINBOLD announced consideration of COVID-19 Disaster
Declaration, Extensions and Vaccine Liability.
1:35:11 PM
CHAIR REINBOLD stated that the mRNA [messenger RNA] vaccines are
under emergency authorization only. She asked if the state has
any risk or whether any risk assessment has been conducted on
vaccines. For example, she asked what risk the state would have
for those vaccinated without informed consent.
SCOTT JORDAN, Director, Division of Risk Management, Department
of Administration (DOA), Juneau, Alaska, answered that the state
could be held liable if the state was administering vaccines
without an informed consent from the person receiving the
vaccination.
1:36:11 PM
CHAIR REINBOLD said her concern about the state's liability
stems from the state's plans to vaccinate large numbers of
Alaskans. The state has already vaccinated over 100,000 people,
excluding the military, she said. She asked whether any
precedent has been set for someone who was vaccinated without
informed consent.
MR. JORDAN answered that he was not aware of any state cases.
CHAIR REINBOLD pressed her position that the state could be at
risk with its mass vaccination plans. She asked if anyone has
assessed if the Department of Health and Social Services (DHSS)
has required patients to sign informed consent forms when it
administered the Pfizer or Moderna vaccines.
MR. JORDAN answered he was not certain of information provided
to patients on side effects.
1:38:33 PM
CHAIR REINBOLD highlighted her concerns about the restrictive
effects of the pandemic on people and businesses. She asked if
the state was liable for any impacts, such as businesses that
closed due to COVID-19 restrictions and mandates.
MR. JORDAN responded that he could not comment on any fallouts
due to COVID-19 mandates.
1:39:12 PM
SENATOR SHOWER expressed concern about liability due to the
mandates, which were more restrictive in some communities such
as Anchorage due to its home rule status. Hundreds of businesses
have closed and the cruise industry has shut down due to
Canada's restrictions on vessels, he said. He shared his concern
that the state might be liable for businesses adversely affected
by state and local mandates. The committee previously heard
testimony that the state might be violating due process rights.
He related that he heard from business owners in his district
that were threatened that their licenses would be pulled if
owners did not comply with the mandates. It seemed to him that
the state could be held liable for direct action by state
employees. He said during its deliberations on Senate Bill 241,
the legislature discussed a provision to ensure that businesses
couldn't be held liable if someone contracts COVID-19 at their
businesses, but it was not adopted.
1:42:47 PM
MR. JORDAN explained that the Division of Risk Management
operates as an insurance company; that the division does not
make any liability determinations. Instead, the courts
effectively make liability determinations. Once the courts have
determined state liability, the state has self-insurance to
cover that liability.
1:43:38 PM
CHAIR REINBOLD asked for the mission statement for the Division
of Risk Management.
MR. JORDAN clarified the question. He responded that the
division's mission is to protect the assets of the state. This
is accomplished in several ways, he said. Typically, insurance
is thought of as liability or property damage. The division has
coverage for aviation, marine coverage, and worker's
compensation. He said that the state acknowledges and
anticipates responsibility for certain types of claims and will
pay these claims. In cases where the state is unsure of the
liability, it would go to court. The court, via the jury,
decides whether the state or parties are held liable. He
reiterated that when the state is found liable, it has policies
to cover that liability.
1:45:14 PM
SENATOR KIEHL asked what types of enforcement actions by state
employees cause state liability and what do not.
MR. JORDAN replied he would be concerned about negligent acts by
state employees or state agencies engaging in wrongdoing. He
provided examples, noting that claims for damage due to potholes
are not considered liabilities or negligent acts. Instead,
potholes are regarded as acts of nature. State maintenance crews
will fix them as soon as possible, he said.
1:47:12 PM
SENATOR KIEHL asked if the division reviews regulations.
MR. JORDAN responded that the Division of Risk Management was
not involved in the enforcement of regulations. However, the
division does review regulations and Alaska Statutes (AS) to
determine if any issue or claim exists. Agencies or their legal
representatives make those determinations, he said.
1:48:29 PM
SENATOR SHOWER asked if state employees are forcing business
owners to shut down whether the state could be liable for
failure to provide due process. He stated that he had received
complaints from many business owners in his district that state
employees are taking action.
MR. JORDAN answered that first, someone would need to make a
determination of liability. He reiterated that the division does
not make those determinations. He related a scenario where a
state employee gave out bad information or did something
negligent in the scope and course of his/her work. It is
possible the state might be liable for compensation for those
actions, he said.
1:50:50 PM
CHAIR REINBOLD remarked that the governor's disaster declaration
contained 13 pages of suspended regulations. She recalled that
the Department of Health and Social Services (DHSS) suspended
about 110 regulations. She expressed concern that a patient at
API (Alaska Psychiatric Institute) might not be allowed to meet
with his/her attorney because of suspended regulations. She
asked if the state could be held liable in those instances.
1:52:14 PM
KELLY TSHIBAKA, Commissioner, Department of Administration
(DOA), Juneau, Alaska, answered that the department would not be
able to determine the level of risk. The DOA can only assess
what happens under the insurance policy once a determination of
liability is made.
CHAIR REINBOLD asked what direction the governor gave the DOA
concerning the suspension of regulations under the COVID-19
disaster declaration.
COMMISSIONER TSHIBAKA responded that when the emergency orders
were initially issued at the beginning of the pandemic,
questions arose about what would be most helpful for Alaskans
and how the state could protect people from exposure to COVID-
19. She indicated that one goal was to help people get
prescriptions faster, consistent with US Centers for Disease
Control (CDC) guidelines. However, those actions were not
related to the insurance program that Mr. Jordan oversees.
1:53:59 PM
CHAIR REINBOLD asked if the Board of Pharmacy was restricting
people from drugs like ivermectin or hydroxychloroquine. If so,
the state might be held liable. She said she believes those
drugs might save lives. She expressed concern about the
potential liability the state might incur since it administers
vaccines. Some people may experience adverse reactions to the
vaccine. She maintained her view that someone should be held
responsible especially if the person was not fully informed that
the vaccines being administered were being done under an
emergency use authorization.
COMMISSIONER TSHIBAKA said someone else would need to assess the
liability to the state.
MR. JORDAN concurred with Commissioner Tshibaka. He said that
someone would first need to determine liability. The underlying
issue is whether people were informed, he said. If people
receive a list of potential side effects, they can make informed
decisions on whether to take the vaccines.
1:56:21 PM
CHAIR REINBOLD pressed her view that people are not adequately
informed. For example, she received an email today and the
person indicated they did not sign anything when the vaccine was
administered. She maintained her position in favor of written
informed consent. She obtained packets from her doctor's office
for Moderna and Pfizer vaccines, but she has no idea what
happens at clinics.
1:56:43 PM
SENATOR SHOWER expressed concern that the state and legislature
could be held liable if someone caught COVID-19 at a business.
He reported that these types of accusations have been made in
the Lower 48. He asked if it would be prudent for the
legislature or the administration to protect business owners
from liability if a person gets sick at their businesses.
COMMISSIONER TSHIBAKA answered yes. She suggested that it could
be worthwhile to review the claims that previously occurred.
However, since COVID-19 is unprecedented, it is difficult to
predict what might result in risk liability for the state. She
said it is always good to reduce liability, but she deferred to
the legislature to decide how to accomplish this.
1:59:31 PM
SENATOR KIEHL said he was unsure how the state could be held
liable for claims against private businesses. He asked if Mr.
Jordan was familiar with the federal Public Readiness and
Emergency Preparedness Act [PREP Act], which provides immunity
from liability for vaccine administration.
MR. JORDAN answered that he was aware of the US Department of
Health & Human Services Countermeasure Injury Compensation
Program. This program gives compensation to those who received
vaccines and may have had adverse reactions or health issues
arise.
SENATOR KIEHL explained that there is no liability under the
PREP Act unless someone responding to a pandemic commits willful
misconduct by clear and convincing evidence. He asked if the
division has considered how the PREP Act would apply to vaccines
and vaccine distribution.
MR. JORDAN offered to review the PREP Act.
2:03:15 PM
COMMISSIONER TSHIBAKA, in response to Chair Reinbold, said the
governor's legislative office could likely answer questions on
the state's liability.
2:03:48 PM
MR. JORDAN explained that the responsibility would be assumed by
the organization administering the vaccines. The state is
responsible for its public health employees to inform people of
the potential side effects of vaccines.
CHAIR REINBOLD reiterated her question is to determine the
potential liability to the state if someone dies or has an
adverse reaction to the vaccine.
MR. JORDAN deferred to the commissioner or someone from the
DOA's Division of Retirement and Benefits to respond.
CHAIR REINBOLD asked whether state employees are required to get
vaccinated and whether it will fall under workers' compensation
if employees have adverse reactions.
COMMISSIONER TSHIBAKA answered that the state does not currently
mandate vaccines for state employees. She explained that if
someone from DHSS administers the vaccine and something goes
wrong, it could come back to the state's risk management
program. It would depend on the circumstances. However, if a
private doctor or nurse administers the vaccine, the risk
liability would rest with the doctor or nurse. The state does
not anticipate increased health costs for state employees under
its plan. She affirmed that private doctors and nurses must
fully disclose the pros, cons, and risks of vaccines, just as
state employees who administer shots must do.
2:06:52 PM
CHAIR REINBOLD asked if the state would be at risk if Dr. Zink,
the state's chief medical officer, made statements and the
health risks for those claims turned out not to be true. For
example, Dr. Zink might comment on mRNA vaccines, stating that
herd immunity is better than natural immunity. She suggested
that Alaskans might believe those statements, but every doctor
she has consulted did not agree with Dr. Zink's opinions.
COMMISSIONER TSHIBAKA explained that if a court issues a finding
of liability for actions by state employees, the Division of
Risk Management will administer the payout.
2:08:16 PM
CHAIR REINBOLD asked the record to reflect that she has been
alarmed by the statements and conclusions that Dr. Zink has
made.
2:08:40 PM
SENATOR SHOWER maintained his concern that during its
deliberations on Senate Bill 241, the legislature did not
include provisions to provide immunity to businesses. He said
that customers who contracted COVID-19 might hold the
restaurants or bars liable.
2:10:31 PM
SENATOR KIEHL reported that the Congressional Research Service
issued a 5-page report on the PREP Act, which broadly grants
liability exemptions. He acknowledged that everyone wants
businesses to operate in an excellent legal environment. Still,
he did not think the legislature would like to go as far as the
federal government to grant broad immunity. For example, a
doctor could make false statements, and as long as the person
did not engage in willful misconduct, the person would not be
held liable under federal law.
2:12:18 PM
CHAIR REINBOLD asked him to identify a solution.
SENATOR KIEHL responded that the PREP Act provides a
compensation program, but federal law goes too far in giving a
liability exemption.
CHAIR REINBOLD expressed concern about people suffering harm
after receiving the mRNA vaccines. She maintained her interest
in identifying the responsible party if someone dies due to
receiving the COVID-19 vaccine. She elaborated on her concerns
for citizens and the state's liability to vaccines since it is
administering them and has pressured people to get vaccinated.
She said she had received numerous email complaints from people
who feel intimidated to get vaccinated and that some people fear
losing their jobs. She recapped her concerns: the intimidation
factor, the liability, and the absence of long-term studies. She
highlighted that the 2002-2005 trials found the animals were
initially okay with two injections but died when exposed a year
later.
SENATOR KIEHL expressed gratitude that the two mRNA vaccines
have been safe and effective in animal and human trials.
However, he expressed a willingness to work with Chair Reinbold
to petition the federal government to assign some liability
related to COVID-19 vaccines.
CHAIR REINBOLD agreed to do so. She remarked that it could take
years for problems to arise.
2:17:17 PM
SENATOR SHOWER commented it does take time for vaccine trials.
He pressed his position that the legislature should ensure that
business owners have some recourse. He said it is important for
the committee to hold these discussions on liability issues to
protect its citizens.
2:19:37 PM
CHAIR REINBOLD restated her concerns about vaccines in Alaska
and her desire to identify who should be held liable when
problems arise. She said the US should be cautious about seeking
a goal of vaccinating 100 million people in the first 100 days.
She maintained that people are being intimidated and bullied via
letters and phone calls. She recalled Commissioner Tshibaka
indicated the person giving the injection could be held liable,
which does not seem fair.
2:20:46 PM
SENATOR MYERS stated that the federal Countermeasure Injury
Compensation Program (CICP) provides compensation. He said the
program sets a high bar, but it does establish a process for
those harmed by the vaccine or other medical measures associated
with COVID-19.
CHAIR REINBOLD concurred that the CICP sets an extremely high
bar. She had some concerns about the program. She maintained her
concern about the potential harm to Alaskans with some vaccines.
For example, Johnson & Johnson's vaccine will use a live virus.
She said she would follow that issue.
CHAIR REINBOLD asked the record to reflect her concern about the
models used to support the Governor's Disaster Declaration. She
expressed her desire to have the University of Alaska review the
models. She stated her interest in knowing the state's risk if
the disaster declaration and extensions were based on solid
evidence. She expressed concern about the state's liability for
mandates under the COVID-19 disaster declarations, including
wearing face masks in state buildings. She noted that these
false positives and negatives had impacted people's ability to
work or travel. She expressed concern that masks can cause
secondary maladies, including sties, asthma, pleurisy, and acne.
She said the governor issued mandates for masks without any
evidence that they work to prevent or slow COVID-19, especially
since people were fined for not wearing them.
2:26:17 PM
SENATOR HUGHES asked if any lawsuits have been filed in the
state related to risk liability or for disparity in mandates,
especially since some businesses were arbitrarily treated
differently.
^CONFIRMATION HEARINGS
CONFIRMATION HEARINGS
State Commission for Human Rights
Alaska Judicial Council
2:27:24 PM
CHAIR REINBOLD announced the consideration of governor
appointees to the State Commission for Human Rights and the
Alaska Judicial Council that the committee initially heard on
February 5, 2021.
2:27:33 PM
CHAIR REINBOLD referred to a letter from Legislative Legal
Services.
2:27:45 PM
SENATOR SHOWER said that a point was raised during the February
5, 2021, Senate Judiciary Committee meeting regarding the
constitutionality of appointing someone to the Alaska Judicial
Council who is from the same region as other members. The
committee asked if Kristie Babcock's appointment violates the
area representation provision in Article 4, Section 8 of the
Alaska Constitution. He read an excerpt from Sandon M. Fisher,
Legislative Counsel, Legal Services memo dated February 8, 2021:
It is my understanding that, with Ms. Babcock on the
Judicial Council, all three non-attorney members would
be residents of different cities within the same
judicial district.
Article IV, sec. 8 of the Alaska Constitution
provides, in relevant part, that "[t]hree attorney
members [of the Judicial Council] shall be appointed
for six-year terms by the governing body of the
organized state bar. Three non-attorney members [of
the Judicial Council] shall be appointed for six-year
terms by the governor subject to confirmation by a
majority of the members of the legislature in joint
session. Appointments shall be made with due
consideration to area representation and without
regard to political affiliation.' There is no case law
on the question of whether appointment of all three
non-attorney members the Judicial Council from the
same judicial district violates art. IV, sec. 8 of the
Alaska Constitution. As a matter of first impression
in Alaska, it is always difficult to predict how a
court might rule. I believe, however, that in the
absence of a direct prohibition on the appointment of
all three non-attorney members from the same judicial
district, that it is slightly more likely that a court
would find that the appointments do not violate the
constitutional requirement for "due consideration to
area representation."
SENATOR SHOWER recapped that the memo says there is no case law
and Legislative Legal Services believes it is more likely that
the courts would rule that this appointment does not violate
that provision.
2:30:17 PM
SENATOR KIEHL referred to some records of the Constitutional
Convention from the committee working on the judicial article.
Delegate Sundborg asked a question about what was meant by the
phrase "on the basis of appropriate area representation."
Delegate George McLaughlin answered that the phrase "on the
basis of appropriate area representation" was put in as a guide
in order to assure that the judicial council would not consist
entirely of three lawyers. It was intended that the judicial
council be represented from all areas of the territory, which
indicated the intent to have a geographical representation.
Delegate Sundborg asked, "So that refers to and modifies the
word 'appoint' on the basis of appropriate area representation."
The style and drafting group indicated that none of its changes
altered the intent of what the committee reported out.
SENATOR KIEHL said the constitutional convention's language does
not differentiate the lawyer group from the non-lawyer group. It
was clearly the intent of the framers of the Alaska Constitution
that both the lawyer appointees and the non-lawyer appointees
should be appointed with due regard for area representation, he
said. He stated that since the Alaska Judicial Council appointee
is from Soldotna, there would not be any representation on the
council from other regions of the state. Instead, he said all of
the public members would be from a small area of Alaska.
2:32:50 PM
SENATOR SHOWER asked that the record reflect that per
Legislative Legal Services, the court would find that the
governor was not prohibited from appointing someone from
Soldotna.
2:33:49 PM
SENATOR HUGHES said many attorneys were involved in the
committee and even though that was the discussion, it did not
translate into the language in the Alaska Constitution. She said
that the governor was to consider but was not required to
appoint members to the judicial council from separate areas.
2:34:45 PM
CHAIR REINBOLD said she likes regional representation and that
both members made valid points.
2:36:05 PM
SENATOR SHOWER stated that in accordance with AS 39.05.080, the
Senate Judiciary Standing Committee reviewed the following and
recommends the appointments be forwarded to a joint session for
consideration:
State Commission for Human Rights
Betsy Engle - Fairbanks
Cynthia Marlene Erickson - Tanana
Alaska Judicial Council
Kristie Babcock - Soldotna
Signing the reports regarding appointments to boards and
commissions in no way reflects individual members' approval or
disapproval of the appointees; the nominations are merely
forwarded to the full legislature for confirmation or rejection.
2:36:46 PM
At ease
2:38:09 PM
CHAIR REINBOLD reconvened the meeting.
2:40:31 PM
There being no further business to come before the committee,
Chair Reinbold adjourned the Senate Judiciary Standing Committee
meeting at 2:40 p.m.
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