HB 7 - VICTIM/JUVENILE OFFENDER MEDIATION CHAIRMAN TAYLOR noted that the newest version of HB 7 limits immunity to those who work in a quasi-judicial capacity, mediators, and those performing a discretionary function. SENATOR PARNELL moved the adoption of SCS for CSHB 7, judiciary version "L." Without objection, it was so ordered. SENATOR PARNELL briefly touched on the two sections of immunity that remained within the bill and provide discretionary immunity to the board of directors and mediators. SENATOR PARNELL asked MR. JOEL LOUNDSBURY if state employees were held liable for discretionary or non- discretionary functions. MR. LOUNDSBURY did not know and CHAIRMAN TAYLOR explained that discretionary functions are the decision making, designing and planning phases of any given thing. Non- discretionary functions are the resulting actions implementing the policy or decision of the discretionary function. CHAIRMAN TAYLOR said there is always debate in the process of determining whether any given thing falls under the category of a discretionary act. MS. VIRGINIA ESPENSHADE testified via teleconference from Homer. MS. ESPENSHADE, the coordinator of the Kenai Peninsula Youth Court, stressed the court's reliance on a small paid staff and lots of volunteers. She expressed concern that limited immunity will not cover these volunteers and will not protect the bulk of the work that the court does. Ms. ESPENSHADE mentioned that not all youth courts are run by nonprofit corporations and those that are not have boards of directors who are the least involved in the actual operations of the court. She mentioned that out of eight or nine attorneys present at any given court hearing, only three or four are acting in a quasi-judicial function. She wanted to be sure the committee understood how limited the new immunity provisions are. CHAIRMAN TAYLOR replied that he clearly understood this dilemma, but knew that discretionary functions are still immunized even if the blanket immunity previously in the bill no longer exists. MS. ESPENSHADE asked if the immunity was qualified and CHAIRMAN TAYLOR said it was qualified by the terms wanton and willful, but negligence was not included and he believes immunity from negligence is not good public policy. MS. ESPENSHADE asked the committee to consider defining the breadth of the immunity in terms of an individual's actions as they relate to their job at youth court. CHAIRMAN TAYLOR responded by saying police officers, for example, are not immunized for negligence. Accidents happen and fair compensation should be required. MS. ESPENSHADE said youth court's activities are limited to certain hours and again she wanted to convey how limited this immunity is. She expressed concern that this limited immunity may be interpreted as an explicit exclusion of immunity for those not covered. She stressed that youth court is run on volunteers and hopes the state can find some way to support them. CHAIRMAN TAYLOR said he did this type of work as a judge, with the help of volunteers, and he could not escape the potential of civil liability. He said if an accident occurs, it would be almost impossible to explain this immunity to the family of the injured victim. MS. ESPENSHADE indicated that the highest potential for this type of accident would be in the work service component. She suggested perhaps this component could be excluded and immunity cover youth court workers only up until the point of sentencing. She emphasized they were just hoping for more coverage. CHAIRMAN TAYLOR said they have tried to break it down to the extent that the board and any quasi-judicial members are covered. He said if her logic was extended, it would mean all community service workers on probation should be covered. MS. ESPENSHADE replied that, as she reads the immunity now, there is no immunity outside of the courtroom setting. CHAIRMAN TAYLOR asked for an example of what type of liability might be incurred in these other phases and MS. ESPENSHADE could not. MS ESPENSHADE suggested that because she was unable to come up with a single hypothetical case of liability, CHAIRMAN TAYLOR should not worry about granting the requested immunity. MR. SCOTT CALDER testified via teleconference from Fairbanks and made some general comments on youth courts and said he feels there may be too much immunity granted now. MS. SHARON LEON, Executive Director of the Anchorage Youth Court, testified via teleconference from Anchorage and said all youth court activities are supervised by carefully chosen volunteers who would not be covered until they actually arrive at work. CHAIRMAN TAYLOR commented that these on-site volunteers would be covered by worker's compensation and a private insurance policy. CHAIRMAN TAYLOR asked if they carry liability insurance. MS. LEON replied yes, and mentioned they also carry Directors and Officers insurance and auto insurance for employees driving personal vehicles when on youth court business. MS. LINDA JOHNSON, a contract attorney for the Anchorage Youth Court, said the bill's new version was distressing in that the youth court is not covered as an entity and discretionary activities by youth court staff are also not covered. MS. JOHNSON mentioned that the board does not engage in day to day court activities and do not carry out many of the discretionary functions of the court. She mentioned that the youth court has all the components as well as the confines of the legal system. She believes that excluding the staff does a disservice to the youth court, which is carrying out the state's work. CHAIRMAN TAYLOR asked if MS. JOHNSON is aware of any immunity enjoyed by court system staff and volunteers. MS. JOHNSON replied that court employees are covered by immunity for discretionary functions and CHAIRMAN TAYLOR said that was still covered in the bill; the committee was trying to get at the discretionary functions of the courts as opposed to the support activities surrounding these decision-making functions. MS. JOHNSON asked how the discretionary functions of the board of directors would be different from those of a staff member. CHAIRMAN TAYLOR said that staff would probably be covered, along with the person who directed their actions, by the doctrine of respondeat superior, to the extent that they were carrying out a legitimate discretionary function as authorized by the board of directors. MS. JOHNSON explained that her complaint was specifically that only board members, and exclusively board members, would be covered by discretionary immunity. SENATOR PARNELL commented that maybe they should give the bill some more thought. CHAIRMAN TAYLOR agreed.