ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
May 18, 2003
10:45 a.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 175(JUD)(efd fld)
"An Act relating to civil liability for inherent risks in sports
or recreational activities."
- MOVED HCS CSSB 175(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 176(JUD)
"An Act relating to civil liability for injuries or death
resulting from livestock activities."
- MOVED CSSB 176(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 198(STA)
"An Act relating to recovery of civil damages by a peace officer
or fire fighter; and providing for an effective date."
- MOVED CSSB 198(STA) OUT OF COMMITTEE
CONFIRMATION HEARING
Regulatory Commission of Alaska
Kate Giard - Anchorage
- CONFIRMATION ADVANCED
CS FOR SENATE BILL NO. 93(JUD) am
"An Act relating to limitations on actions to quiet title to,
eject a person from, or recover real property or the possession
of it; relating to adverse possession; and providing for an
effective date."
- MOVED CSSB 93(JUD) AM OUT OF COMMITTEE
CS FOR SENATE BILL NO. 8(JUD)
"An Act relating to tampering with public records."
- MOVED CSSB 8(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 85(STA)
"An Act relating to sentencing and to the earning of good time
deductions for certain sexual offenses."
- MOVED HCS CSSB 85(JUD) OUT OF COMMITTEE; ADOPTED A HOUSE
CONCURRENT RESOLUTION ALLOWING THE TITLE CHANGE
PREVIOUS ACTION
BILL: SB 175
SHORT TITLE:LIABILITY:RECREATIONAL ACTIVITY/BOATS/AIR
SPONSOR(S): SENATOR(S) SEEKINS
Jrn-Date Jrn-Page Action
04/07/03 0731 (S) READ THE FIRST TIME -
REFERRALS
04/07/03 0731 (S) L&C, JUD
04/29/03 (S) L&C AT 1:30 PM BELTZ 211
04/29/03 (S) Moved CSSB 175(L&C) Out of
Committee
04/29/03 (S) MINUTE(L&C)
04/30/03 1045 (S) L&C RPT CS 3DP 1NR NEW TITLE
04/30/03 1046 (S) DP: BUNDE, SEEKINS, STEVENS
G;
04/30/03 1046 (S) NR: FRENCH
04/30/03 1046 (S) FN1: ZERO(LAW)
05/03/03 (S) JUD AT 9:00 AM BELTZ 211
05/03/03 (S) Scheduled But Not Heard
05/05/03 (S) JUD AT 1:00 PM BELTZ 211
05/05/03 (S) Heard & Held
MINUTE(JUD)
05/08/03 (S) JUD AT 8:00 AM BELTZ 211
05/08/03 (S) Heard & Held
MINUTE(JUD)
05/09/03 1267 (S) JUD RPT CS 3DP NEW TITLE
05/09/03 1268 (S) DP: SEEKINS, THERRIAULT, OGAN
05/09/03 1268 (S) FN1: ZERO(LAW)
05/12/03 1335 (S) RULES TO CALENDAR 5/12/2003
05/12/03 1335 (S) READ THE SECOND TIME
05/12/03 1335 (S) JUD CS ADOPTED UNAN CONSENT
05/12/03 1335 (S) ADVANCED TO THIRD READING
5/13 CALENDAR
05/13/03 1364 (S) READ THE THIRD TIME CSSB
175(JUD)
05/13/03 1365 (S) FAILED PASSAGE Y10 N9 E1
05/13/03 1365 (S) STEVENS B NOTICE OF
RECONSIDERATION
05/14/03 1400 (S) RECON TAKEN UP - IN THIRD
READING
05/14/03 1400 (S) PASSED ON RECONSIDERATION Y13
N7
05/14/03 1400 (S) EFFECTIVE DATE(S) FAILED Y13
N7
05/14/03 1408 (S) TRANSMITTED TO (H)
05/14/03 1408 (S) VERSION: CSSB 175(JUD)(EFD
FLD)
05/15/03 1676 (H) READ THE FIRST TIME -
REFERRALS
05/15/03 1676 (H) JUD
05/15/03 (H) JUD AT 1:00 PM CAPITOL 120
05/15/03 (H) -- Meeting Postponed --
05/17/03 (H) JUD AT 9:00 AM CAPITOL 120
05/17/03 (H) Scheduled But Not Heard
05/18/03 (H) JUD AT 10:00 AM CAPITOL 120
BILL: SB 176
SHORT TITLE:CIVIL LIABILITY FOR LIVESTOCK ACTIVITIES
SPONSOR(S): SENATOR(S) SEEKINS
Jrn-Date Jrn-Page Action
04/07/03 0731 (S) READ THE FIRST TIME -
REFERRALS
04/07/03 0731 (S) L&C, JUD
04/29/03 (S) L&C AT 1:30 PM BELTZ 211
04/29/03 (S) Moved Out of Committee
04/29/03 (S) MINUTE(L&C)
04/30/03 1046 (S) L&C RPT 3DP 1NR
04/30/03 1046 (S) DP: BUNDE, SEEKINS, STEVENS
G;
04/30/03 1046 (S) NR: FRENCH
04/30/03 1046 (S) FN1: ZERO(LAW)
05/03/03 (S) JUD AT 9:00 AM BELTZ 211
05/03/03 (S) Scheduled But Not Heard
05/05/03 (S) JUD AT 1:00 PM BELTZ 211
05/05/03 (S) Moved CSSB 176(JUD) Out of
Committee
MINUTE(JUD)
05/08/03 1246 (S) JUD RPT CS 1DP 4NR SAME TITLE
05/08/03 1246 (S) DP: SEEKINS; NR: THERRIAULT,
OGAN,
05/08/03 1246 (S) FRENCH, ELLIS
05/08/03 1247 (S) FN1: ZERO(LAW)
05/12/03 1335 (S) RULES TO CALENDAR 5/12/2003
05/12/03 1335 (S) READ THE SECOND TIME
05/12/03 1335 (S) JUD CS ADOPTED UNAN CONSENT
05/12/03 1335 (S) ADVANCED TO THIRD READING
5/13 CALENDAR
05/13/03 1365 (S) READ THE THIRD TIME CSSB
176(JUD)
05/13/03 1366 (S) PASSED Y11 N7 E2
05/13/03 1366 (S) TAYLOR NOTICE OF
RECONSIDERATION
05/14/03 1405 (S) RECON TAKEN UP - IN THIRD
READING
05/14/03 1406 (S) PASSED ON RECONSIDERATION Y14
N6
05/14/03 1408 (S) TRANSMITTED TO (H)
05/14/03 1408 (S) VERSION: CSSB 176(JUD)
05/15/03 1676 (H) READ THE FIRST TIME -
REFERRALS
05/15/03 1676 (H) JUD
05/18/03 (H) JUD AT 10:00 AM CAPITOL 120
BILL: SB 198
SHORT TITLE:DAMAGES RECOVERED BY POLICE/FIREFIGHTER
SPONSOR(S): SENATOR(S) SEEKINS
Jrn-Date Jrn-Page Action
04/25/03 0970 (S) READ THE FIRST TIME -
REFERRALS
04/25/03 0970 (S) STA, JUD
05/08/03 (S) STA AT 3:30 PM BELTZ 211
05/08/03 (S) Moved CSSB 198(STA) Out of
Committee
05/08/03 (S) MINUTE(STA)
05/09/03 1268 (S) STA RPT CS 2DP 3NR SAME TITLE
05/09/03 1269 (S) DP: STEVENS G, GUESS;
05/09/03 1269 (S) NR: HOFFMAN, COWDERY, DYSON
05/09/03 1269 (S) FN1: ZERO(LAW)
05/12/03 (S) JUD AT 1:00 PM BELTZ 211
05/12/03 (S) Heard & Held
MINUTE(JUD)
05/13/03 (S) JUD AT 8:00 AM BELTZ 211
05/13/03 (S) Moved CSSB 198(STA) Out of
Committee
MINUTE(JUD)
05/13/03 1358 (S) JUD RPT CS(STA) 2DP 1NR
05/13/03 1359 (S) DP: SEEKINS, FRENCH; NR: OGAN
05/13/03 1359 (S) FN1: ZERO(LAW)
05/14/03 1398 (S) RULES TO CALENDAR 5/14/2003
05/14/03 1398 (S) READ THE SECOND TIME
05/14/03 1398 (S) STA CS ADOPTED UNAN CONSENT
05/14/03 1398 (S) ADVANCED TO THIRD READING
UNAN CONSENT
05/14/03 1398 (S) READ THE THIRD TIME CSSB
198(STA)
05/14/03 1399 (S) PASSED Y20 N-
05/14/03 1399 (S) EFFECTIVE DATE(S) SAME AS
PASSAGE
05/14/03 1409 (S) TRANSMITTED TO (H)
05/14/03 1409 (S) VERSION: CSSB 198(STA)
05/15/03 1676 (H) READ THE FIRST TIME -
REFERRALS
05/15/03 1676 (H) JUD
05/16/03 (H) JUD AT 10:00 AM CAPITOL 120
05/16/03 (H) <Bill Hearing Postponed to
5/18/03>
05/18/03 (H) JUD AT 10:00 AM CAPITOL 120
BILL: SB 93
SHORT TITLE:ADVERSE POSSESSION
SPONSOR(S): SENATOR(S) WAGONER
Jrn-Date Jrn-Page Action
02/28/03 0300 (S) READ THE FIRST TIME -
REFERRALS
02/28/03 0300 (S) L&C, JUD
03/11/03 (S) L&C AT 1:30 PM BELTZ 211
03/11/03 (S) Heard & Held
03/11/03 (S) MINUTE(L&C)
04/01/03 (S) L&C AT 1:30 PM BELTZ 211
04/01/03 (S) Moved CSSB 93(L&C) Out of
Committee
04/01/03 (S) MINUTE(L&C)
04/02/03 0661 (S) L&C RPT CS 4DP 1NR NEW TITLE
04/02/03 0662 (S) DP: BUNDE, DAVIS, SEEKINS,
STEVENS G;
04/02/03 0662 (S) NR: FRENCH
04/02/03 0662 (S) FN1: ZERO(CED)
04/16/03 (S) JUD AT 1:00 PM BELTZ 211
04/16/03 (S) Heard & Held
04/16/03 (S) MINUTE(JUD)
04/30/03 (S) JUD AT 1:45 PM BELTZ 211
04/30/03 (S) Heard & Held
MINUTE(JUD)
05/02/03 (S) JUD AT 1:00 PM BELTZ 211
05/02/03 (S) Heard & Held
MINUTE(JUD)
05/06/03 (S) JUD AT 8:00 AM BELTZ 211
05/06/03 (S) Moved CSSB 93(JUD) Out of
Committee
MINUTE(JUD)
05/07/03 1199 (S) JUD RPT CS 1DP 4NR NEW TITLE
05/07/03 1199 (S) NR: SEEKINS, FRENCH, OGAN,
THERRIAULT;
05/07/03 1199 (S) DP: ELLIS
05/07/03 1199 (S) FN1: ZERO(CED)
05/07/03 1230 (S) RULES TO CALENDAR 5/7/2003
05/07/03 1230 (S) READ THE SECOND TIME
05/07/03 1230 (S) MOTION TO ADOPT JUD CS
05/07/03 1230 (S) MOTION WITHDRAWN
05/07/03 1230 (S) RETURNED TO RLS COMMITTEE
05/09/03 1278 (S) RULES TO CALENDAR 5/9/2003
05/09/03 1278 (S) BEFORE THE SENATE IN SECOND
READING
05/09/03 1279 (S) JUD CS ADOPTED Y15 N5
05/09/03 1279 (S) AM NO 1 ADOPTED Y19 N1
05/09/03 1280 (S) ADVANCED TO THIRD READING
UNAN CONSENT
05/09/03 1280 (S) READ THE THIRD TIME CSSB
93(JUD) AM
05/09/03 1280 (S) MOTION TO RETURN BILL TO RLS
COMMITTEE
05/09/03 1281 (S) MOTION FAILED Y5 N14 A1
05/09/03 1281 (S) PASSED Y15 N5
05/09/03 1281 (S) EFFECTIVE DATE(S) SAME AS
PASSAGE
05/09/03 1281 (S) OGAN NOTICE OF
RECONSIDERATION
05/10/03 1309 (S) RECON TAKEN UP - IN THIRD
READING
05/10/03 1309 (S) PASSED ON RECONSIDERATION Y15
N3 E1 A1
05/10/03 1309 (S) EFFECTIVE DATE(S) SAME AS
PASSAGE
05/10/03 1311 (S) TRANSMITTED TO (H)
05/10/03 1311 (S) VERSION: CSSB 93(JUD) AM
05/12/03 1553 (H) READ THE FIRST TIME -
REFERRALS
05/12/03 1553 (H) JUD
05/14/03 (H) JUD AT 1:00 PM CAPITOL 120
05/14/03 (H) Scheduled But Not Heard
05/15/03 (H) JUD AT 8:30 AM CAPITOL 120
05/15/03 (H) -- Meeting Canceled --
05/18/03 (H) JUD AT 10:00 AM CAPITOL 120
BILL: SB 8
SHORT TITLE:TAMPERING WITH PUBLIC RECORDS
SPONSOR(S): SENATOR(S) DAVIS
Jrn-Date Jrn-Page Action
01/21/03 0016 (S) PREFILE RELEASED 1/10/03
01/21/03 0016 (S) READ THE FIRST TIME -
REFERRALS
01/21/03 0016 (S) HES, JUD
03/05/03 (S) HES AT 1:30 PM BUTROVICH 205
03/05/03 (S) Heard & Held
03/05/03 (S) MINUTE(HES)
03/10/03 (S) HES AT 1:30 PM BUTROVICH 205
03/10/03 (S) Scheduled But Not Heard
03/17/03 (S) HES AT 1:30 PM BUTROVICH 205
03/17/03 (S) Scheduled But Not Heard
03/24/03 (S) HES AT 5:00 PM FAHRENKAMP 203
03/24/03 (S) Moved Out of Committee
03/24/03 (S) MINUTE(HES)
03/26/03 0588 (S) HES RPT 2DP 2NR 1AM
03/26/03 0588 (S) AM: DYSON; DP: GREEN, DAVIS;
03/26/03 0588 (S) NR: GUESS, WILKEN
03/26/03 0588 (S) FN1: ZERO(LAW)
04/25/03 (S) JUD AT 1:00 PM BELTZ 211
04/25/03 (S) Heard & Held
MINUTE(JUD)
05/06/03 1188 (S) COSPONSOR(S): DYSON
05/06/03 (S) JUD AT 8:00 AM BELTZ 211
05/06/03 (S) Moved CSSB 8(JUD) Out of
Committee
MINUTE(JUD)
05/07/03 1199 (S) JUD RPT CS 3DP 2NR SAME TITLE
05/07/03 1199 (S) DP: SEEKINS, FRENCH, ELLIS;
05/07/03 1199 (S) NR: THERRIAULT, OGAN
05/07/03 1199 (S) FN2: ZERO(ADM)
05/15/03 1431 (S) RULES TO CALENDAR 5/15/2003
05/15/03 1431 (S) READ THE SECOND TIME
05/15/03 1431 (S) JUD CS ADOPTED UNAN CONSENT
05/15/03 1431 (S) ADVANCED TO THIRD READING
UNAN CONSENT
05/15/03 1431 (S) READ THE THIRD TIME CSSB
8(JUD)
05/15/03 1432 (S) PASSED Y20 N-
05/15/03 1432 (S) COSPONSOR(S): LINCOLN,
FRENCH, BUNDE,
05/15/03 1432 (S) COWDERY, ELTON, ELLIS
05/15/03 1455 (S) TRANSMITTED TO (H)
05/15/03 1455 (S) VERSION: CSSB 8(JUD)
05/16/03 1725 (H) READ THE FIRST TIME -
REFERRALS
05/16/03 1725 (H) JUD
05/18/03 (H) JUD AT 10:00 AM CAPITOL 120
BILL: SB 85
SHORT TITLE:REPEAT SERIOUS SEX OFFENSES
SPONSOR(S): SENATOR(S) FRENCH
Jrn-Date Jrn-Page Action
02/26/03 0274 (S) READ THE FIRST TIME -
REFERRALS
02/26/03 0274 (S) STA, JUD
04/03/03 (S) STA AT 3:30 PM BUTROVICH 205
04/03/03 (S) -- Location Change --
04/10/03 (S) STA AT 3:30 PM BELTZ 211
04/10/03 (S) Moved CSSB 85(STA) Out of
Committee
04/10/03 (S) MINUTE(STA)
04/11/03 0807 (S) STA RPT CS 5DP SAME TITLE
04/11/03 0807 (S) DP: STEVENS G, DYSON, GUESS,
04/11/03 0807 (S) COWDERY, HOFFMAN
04/11/03 0808 (S) FN1: ZERO(COR)
04/11/03 0808 (S) FN2: ZERO(LAW)
04/28/03 (S) JUD AT 1:00 PM BELTZ 211
04/28/03 (S) Heard & Held
MINUTE(JUD)
05/02/03 (S) JUD AT 1:00 PM BELTZ 211
05/02/03 (S) Moved CSSB 85(STA) Out of
Committee
MINUTE(JUD)
05/03/03 1127 (S) JUD RPT CS(STA) 3DP 2NR
05/03/03 1127 (S) DP: SEEKINS, FRENCH, ELLIS;
05/03/03 1127 (S) NR: THERRIAULT, OGAN
05/03/03 1127 (S) FN1: ZERO(COR)
05/03/03 1127 (S) FN2: ZERO(LAW)
05/03/03 1127 (S) FIN REFERRAL ADDED AFTER JUD
05/08/03 (S) FIN AT 9:00 AM SENATE FINANCE
532
05/08/03 (S) Moved CSSB 85(STA) Out of
Committee
05/08/03 (S) MINUTE(FIN)
05/08/03 1245 (S) FIN RPT CS(STA) 7DP
05/08/03 1245 (S) DP: GREEN, WILKEN, TAYLOR,
HOFFMAN,
05/08/03 1245 (S) OLSON, BUNDE, STEVENS B
05/08/03 1246 (S) FN2: ZERO(LAW)
05/08/03 1245 (S) FN3: INDETERMINATE(ADM)
05/08/03 1245 (S) FN4: INDETERIMINATE(COR)
05/14/03 1392 (S) RULES TO CALENDAR 5/14/2003
05/14/03 1392 (S) READ THE SECOND TIME
05/14/03 1393 (S) STA CS ADOPTED UNAN CONSENT
05/14/03 1393 (S) ADVANCED TO THIRD READING
UNAN CONSENT
05/14/03 1393 (S) READ THE THIRD TIME CSSB
85(STA)
05/14/03 1393 (S) PASSED Y20 N-
05/14/03 1407 (S) COSPONSOR(S): COWDERY
05/14/03 1408 (S) TRANSMITTED TO (H)
05/14/03 1408 (S) VERSION: CSSB 85(STA)
05/15/03 1675 (H) READ THE FIRST TIME -
REFERRALS
05/15/03 1675 (H) JUD
05/16/03 (H) JUD AT 10:00 AM CAPITOL 120
05/16/03 (H) <Bill Hearing Postponed to
5/18/03>
05/18/03 (H) JUD AT 10:00 AM CAPITOL 120
WITNESS REGISTER
SENATOR RALPH SEEKINS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 175; sponsor of SB 176;
sponsor of SB 198.
STEVE CONN, Special Projects Coordinator
Alaska Public Interest Research Group (AkPIRG)
Anchorage, Alaska
POSITION STATEMENT: Expressed concerns during discussion of SB
175; expressed concerns during discussion of SB 176.
MITCHELL GRAVO, Lobbyist
for Anchorage Police Department Employees Association (APDEA)
Anchorage, Alaska
POSITION STATEMENT: Responded to a question during discussion
of SB 198.
KATE GIARD, Appointee
Regulatory Commission of Alaska (RCA)
Anchorage, Alaska
POSITION STATEMENT: Testified as appointee to the Regulatory
Commission of Alaska.
SENATOR THOMAS WAGONER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 93.
VANESSA TONDINI, Staff
to Representative Lesil McGuire
House Judiciary Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided a clarifying comment during
discussion of SB 93.
JONATHAN TILLINGHAST, Lobbyist
for Sealaska Corporation ("Sealaska")
Juneau, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of SB 93.
REPRESENTATIVE ALBERT KOOKESH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of SB
93.
SENATOR SCOTT OGAN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of SB
93.
DARYL L. REINDL
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of SB
93.
RONALD L. BAIRD, Attorney at Law
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of SB
93 and suggested language changes.
JIM COLVER
(Address not provided)
POSITION STATEMENT: Provided comments and a suggested language
change during discussion of SB 93.
RICHARD BENAVIDES, Staff
to Senator Bettye Davis
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 8 on behalf of Senator Davis,
sponsor.
SENATOR HOLLIS FRENCH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 85.
ACTION NARRATIVE
TAPE 03-70, SIDE A
Number 0001
VICE CHAIR TOM ANDERSON called the House Judiciary Standing
Committee meeting to order at 10:45 a.m. Representatives
Anderson, Holm, Samuels, and Gruenberg were present at the call
to order. Representatives McGuire, Ogg, and Gara arrived as the
meeting was in progress.
SB 175-LIABILITY:RECREATIONAL ACTIVITY/BOATS/AIR
Number 0080
VICE CHAIR ANDERSON announced that the first order of business
would be CS FOR SENATE BILL NO. 175(JUD)(efd fld), "An Act
relating to civil liability for inherent risks in sports or
recreational activities."
The committee took an at-ease from 10:46 a.m. to 10:48 a.m.
Number 0112
SENATOR RALPH SEEKINS, Alaska State Legislature, sponsor,
paraphrased his sponsor statement, which read [original
punctuation provided]:
Alaska has many recreational opportunities to offer
outdoor enthusiasts. Visitors from all over the
world, along with in-state recreationalists [sic],
enjoy commercial activities such as river rafting,
guided hiking, snowboarding and sport fishing to name
a few. Yet, the high cost of liability insurance
presents a significant barrier to these enterprises,
the vast majority of which are small Alaska-bases
companies.
Without exception, participation in outdoor
recreational activities carries with it a degree of
inherent risk. Senate Bill 175 adds the presumption
that a participant accepts the inherent risks of a
commercial recreation activity and as such has played
a role in any damages resulting from that inherent
risk.
This legislation will decrease the uncertainties
regarding the legal responsibilities for injuries and
encourage the continued viability of responsible
businesses that offer commercial recreational
activities to the public. Existing legal
uncertainties have resulted in high liability
insurance costs, which are prohibitive, especially for
smaller businesses.
This bill will help avoid unfair and unreasonable
claims that make it difficult to provide recreational
and outdoor activities that are closely identified
with the Alaska lifestyle and have come to be expected
by visitors looking for exceptional experiences.
SENATOR SEEKINS remarked that the high cost of insurance is also
a substantial barrier to new businesses, that SB 175 "delineates
the burden of responsibility" for businesses offering commercial
recreation activities and persons who elect to participate in
those activities, and that such businesses are still responsible
for meeting safety standards and providing trained and competent
personnel.
VICE CHAIR ANDERSON turned the gavel over to Chair McGuire.
Number 0269
REPRESENTATIVE GARA noted that there have been a few deaths
caused by rafting on the Nenana River, and that although
whitewater rafting carries with it the inherent risk of possibly
dying, the chances of that are altered dramatically depending on
the raft operator's level of competence. Why should a company
that hires incompetent raft operators be exempt from liability?
Isn't that unfair to companies that do hire competent raft
operators?
SENATOR SEEKINS asserted that SB 175 "doesn't do that." He
referred to page 3, lines 1-3, which says:
(c) This section does not apply to a civil action
based on the (1) negligence of a provider if the
injury, death, or damage was not the result of an
inherent risk of the sports or recreational activity
that was provided
SENATOR SEEKINS opined that this language provides that
companies are still responsible for hiring competent personnel
and providing adequate training. He referred to an incident
that occurred a number of years ago in which a woman in her
eighties died on a rafting trip, and relayed that the
plaintiff's attorney in that case assured him that under SB 175,
the rafting company would not have been exempted from the
negligence claim brought against it because it was clearly a
case of negligence rather than inherent risk. He asserted that
the aforementioned attorney considered SB 175 to be good public
policy, and that it makes a distinction between negligence and
inherent risk.
REPRESENTATIVE GARA observed, however, that the aforementioned
language contains a conflict because it says that a provider is
liable for negligence unless the damage is caused by an inherent
risk of the activity. Such would allow a rafting company to
say, "Dying in whitewater, that's an inherent risk of the sports
activity," and thereby escape liability even if the company were
negligent. He asked Senator Seekins whether he would be
comfortable with language that simply said a company is liable
if it is negligent.
Number 0522
SENATOR SEEKINS said he understood Representative Gara's
concern, acknowledged that "it could probably go either way,"
but indicated that he felt the current language to be sufficient
to allow for a civil action based on negligence. In the
aforementioned incident, he said, it was negligence on the part
of the provider because "they didn't look for the old lady soon
enough".
REPRESENTATIVE GRUENBERG remarked that in a case from the early
1960s, the Alaska Supreme Court did not adopt the defense known
as "assumption of the risk," which had previously been applied
in cases involving injury to a spectator at a sporting event.
He asked whether SB 175 would include spectators of activities.
SENATOR SEEKINS said SB 175 would apply to people who are
actually involved in an activity, adding that they should be
assuming the inherent risks involved in that activity.
REPRESENTATIVE GRUENBERG asked Senator Seekins whether he would
be willing to accept an amendment that would exclude passive
spectators.
SENATOR SEEKINS indicated that to some degree, spectators of
sporting events are participating in those events, and thus
should assume the inherent risks involved.
REPRESENTATIVE SAMUELS said he agrees that people should take
responsibility for the inherent risks of the activities they
choose to participate in.
REPRESENTATIVE GARA said he agrees with the idea that people
need to take responsibility for themselves, that there are
certain activities that are very dangerous, and that others
should not be held responsible for mishaps during those
activities. However, with regard to the aforementioned rafting
example, he noted that Senator Seekins did acknowledge that the
language currently in the bill could allow a case of negligence
to "go either way."
Number 0941
REPRESENTATIVE GARA said that this is a problem for him. He
proffered that were he in the position of defending against a
claim of negligence because someone he took on a rafting trip
died, in order to get out of being held civilly liable, he would
rely on the language currently in the bill allowing for an
exemption because of an inherent risk. He said he would simply
make the argument that he tells his passengers beforehand that
the water is so cold in Alaska that they will get hypothermia
within a matter of minutes, and therefore dying from falling in
the water is an inherent risk of the activity. He offered the
example of a rafting company hiring someone incompetent who ends
up dumping all of his/her passengers in the river and they die
as a result; the defense for that company could simply say that
dying is an inherent risk of the activity, and the company would
not be held liable even though it was negligent in hiring the
person that was incompetent. Why immunize something like that,
he asked, adding that because people could argue about how the
language under discussion should be interpreted, he did not want
to provide for that kind of uncertainty in the law.
SENATOR SEEKINS predicted that after determining that the people
got in the water in the first place through an act of
negligence, the court would simply rule that the company is
liable. He added, however, that the people choosing to
participate in the activity accepted the inherent risk of that
activity.
CHAIR McGUIRE said she could see Representative Gara's point, as
well as that of Senator Seekins. She said she would like to
focus on the drafting of SB 175.
REPRESENTATIVE GARA suggested that he and Senator Seekins didn't
disagree. He added,
There is some dividing line between when you've
engaged in a potentially dangerous sports activity and
you have to accept that it's dangerous - I understand
that. But I don't want to throw the baby out with the
bathwater, because there are also circumstances where
somebody, through complete irresponsibility, who is
trying to make money off of you, does a terrible job.
And we don't want to encourage that.
SENATOR SEEKINS indicated that he agrees that negligence should
not be [exempted from liability]. He said he doesn't have a
problem with saying that the negligent person should be held
responsible, but that should not include being held responsible
for inherent risks.
Number 1220
REPRESENTATIVE GARA said he agrees with Senator Seekins's
comments, adding, however, that he wants to "get there and not
someplace else." He asked whether it would be alright to
rewrite lines 2-3, on page 3, to essentially say there is
immunity if the injury, death, or damage is the result of the
inherent risk of the sports or recreational activity that are
provided except insofar as the provider was negligent.
REPRESENTATIVE HOLM opined that language on page 2, lines 4-7,
sums up what the Act is to do and specifies precisely what
Representative Gara intends; that language says:
(b) it is the intent of this Act to (1) limit or
eliminate the liability of a provider of a sports or
recreational activity to a participant in the activity
when an injury or damage caused by or to the
participant is the result of the risks inherent in the
activity
REPRESENTATIVE GRUENBERG remarked that in spectator sports,
there are steps that can be taken by industry to reduce the
risks to spectators; for example, there are high Plexiglas
barriers around ice hockey rinks [and huge nets are now put in
place in the stands behind the goals] to reduce the risk of a
spectator getting hit with a puck. He turned attention to page
3, line 4, and noted that it says, "design or manufacture of
sports or recreational equipment or products or safety equipment
used". He said that he would like the language to also specify
the proper installation of the equipment and so forth; thus it
could read, "design, manufacture, or installation".
CHAIR McGUIRE asked Representative Gruenberg whether his intent
is to create a cause of action against the person who installed
the equipment, or whether it is to create a cause of action
against the person who installed one type of equipment while
knowing that another type should have been installed instead.
REPRESENTATIVE GRUENBERG replied, "Either. Or the operators of
the rink or whoever it was."
Number 1381
SENATOR SEEKINS opined that that would result in a cause of
action against someone who was not the provider, and so SB 175
would not provide immunity for that person.
The committee took an at-ease from 11:10 a.m. to 11:15 a.m.
REPRESENTATIVE GRUENBERG indicated that his concern is that the
current language in SB 175 could be interpreted two different
ways and, therefore, it is unclear as to whether there would be
a cause of action if safety equipment is not installed properly.
He asked Senator Seekins: "If they fail to raise the net or
fail to install a Plexiglas shield in a hockey rink, is it your
intent to allow a cause of action? Or not?"
SENATOR SEEKINS replied:
I believe that if the normal protections were there,
with the normal installations ..., for an example, and
someone failed to put them in place, ... that would
subject the provider to a certain degree of liability.
And that would not be tolled by this bill.
REPRESENTATIVE GRUENBERG assured Senator Seekins that he is not
referring to "the pickup hockey game or basketball game."
Instead, he is referring to the Sullivan Arena or a university
rink, for example, which are professionally designed but might
fail to meet normal [safety precaution] standards.
CHAIR McGUIRE suggested to Representative Gruenberg that he
offer an amendment to address his concern.
Number 1535
REPRESENTATIVE GRUENBERG [made a motion to adopt Amendment 1, to
add "or installation" to page 3, line 4, after "manufacture"].
CHAIR McGUIRE objected.
Number 1551
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 1. Representatives Ogg, Samuels,
and McGuire voted against it. Therefore, Amendment 1 failed by
a vote of 2-3.
CHAIR McGUIRE asked Representative Gara which amendment he would
be offering.
Number 1574
REPRESENTATIVE GARA said, "The longer one," and offered the
following handwritten amendment [original punctuation provided]:
Delete p. 3 line 2-3
Insert "inherent risk of the sports or recreational
activity that was provided, except insofar as the
provider was negligent."
REPRESENTATIVE GARA went on to say:
I think everybody in this room has the same intention
on this bill, but currently the wording doesn't
satisfy that intention. The wording at page 3, line
2, says, and will be interpreted, that if you are
negligent, you are not liable if it was within an
activity where the inherent risk is such that you
should expect that you might die or be hurt. So, if
you are negligent, you're still not liable.
And I don't believe that's the intention of the
sponsor of the bill. And so what the amendment says
is that you should clearly, clearly be immunized if
you are injured because of the inherent risk ... of
the activity, but if you are injured because of
somebody's negligence, then you're not immunized. And
that will be the standard that the court will impose
on us; the jury will be asked, "Was it because of the
inherent risk, or was [it] because of the negligence?"
And if it's because of the negligence, then you're
just not immunized. And I believe, from the
discussion, that that seems to be the intent of all of
us, and this language gets us there.
SENATOR SEEKINS pointed out however, that the language in the
bill would then read, "This section does not apply to a civil
action based on the inherent risk of the sports or recreational
activity that was provided, except insofar as the provider was
negligent." He opined that this was exactly the opposite of
what's been discussed.
REPRESENTATIVE GARA acknowledged that "there's a negative;
Senator Seekins is correct."
Number 1653
CHAIR McGUIRE suggested putting the offered language in a
different part of the bill. She said:
Section 3 is where it sets out those things that
you're immunized from, essentially, and then
[subsection] (c) is sort of the carve out - it's the
caveat, it's the exception. So it's saying the rule
is [proposed Sec.] 09.65.290, and that sets it out:
"Civil liability for sports or recreational
activities." And then it goes on to say, "But please
understand, essentially, you can still sue for
negligence of a provider if the injury, death, or
damage was not the result of inherent risk of the
sports activity."
REPRESENTATIVE GARA remarked that he is [rewriting] his
amendment.
Number 1687
STEVE CONN, Special Projects Coordinator, Alaska Public Interest
Research Group (AkPIRG), said that one of his concerns is that
many tourist ventures run by small operators are sold through
cruise ship lines, and so these cruise ship lines may "serve
up," to the small operators, people that the small operator may
or may not want to have participate in the activity offered.
"It's going to put quite a burden on that small operator because
all shapes and sizes come on the cruise ships," he added.
Another concern he said he has is that if misinterpreted, SB 175
will do damage to Alaska's ability to attract participants to
Alaska's fledgling tourist industry by suggesting that Alaska is
attempting to block providers' normal responsibilities during
activities that do have some inherent risk. He said he is
assuming that the committee will consider both of his concerns
as general policy matters while it proceeds with the bill.
Number 1825
REPRESENTATIVE OGG said he objects to Representative Gara's
amendment.
REPRESENTATIVE GARA indicated that he withdrew it in order to
create a new version of it.
CHAIR McGUIRE, after determining that no one else wished to
testify, closed the public testimony on SB 175.
Number 1853
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2, a
handwritten amendment which read [original punctuation
provided]:
e This section does not apply if the cause of action
is based upon the failure of a professionally designed
sports arena to have or utilize normal safety
equipment designed to protect patrons who purchase
tickets to watch sporting events.
Number 1862
CHAIR McGUIRE objected.
REPRESENTATIVE GRUENBERG said the purpose of Amendment 2 is to
protect spectators who purchase tickets at a professionally
designed sports arena that fails to have or utilize normal
safety equipment designed to protect them. He said he wants
this point to be clearly stated so that it is not subject
interpretation. In response to another member's concern, he
said that he is referring to professional sports arenas that are
designed using national standards, and that he does not expect
owners of such arenas to put up brick walls, for example, in
order to protect spectators. He assured members that he is not
suggesting that sports arenas put up anything other than what
they would normally have, but if the arenas fail to meet just
normal national standards or neglect to utilize what they
already have, then they would be liable.
REPRESENTATIVE GARA mentioned that the whole issue of liability
to sports arenas almost never comes up. Under existing law, if
an arena is built to national safety standards, the jury would
be told that, "and they would laugh at the case and it would be
done with," he added. He said he has no interest in changing
the bill in the manner proposed by Amendment 2 "because it's not
a liability problem in the first place."
REPRESENTATIVE GRUENBERG said he is simply concerned about
instances in which sport arenas clearly fail to meet national
safety standards, adding that he doesn't want SB 175 to change
the normal jury instruction in such cases.
REPRESENTATIVE GARA opined that as currently written, SB 175
would change the jury instruction in lot of areas unless it is
altered such that "negligence is still in there."
REPRESENTATIVE GRUENBERG said he would not want to adopt
Amendment 2 if it wouldn't have any effect on current practice,
adding that he just wants to keep the normal standard.
Number 2005
REPRESENTATIVE GARA posited that if SB 175 could be clarified to
reflect that one is still liable for negligence but not for
inherent risk, then Amendment 2 will not be necessary. Absent
that clarification, however, Amendment 2 will be necessary.
REPRESENTATIVE GRUENBERG reiterated that his intent is for
Amendment 2 to only pertain to situations in which professional
sports arenas do not meet normal national standards.
CHAIR McGUIRE said she understood Representative Gruenberg's
intent in offering Amendment 2. However, she remarked, it is a
hastily crafted amendment that could have unforeseen
consequences. For example, she said that she doesn't know what
normal national safety standards are with regard to sporting
arenas. She reiterated that she objects to Amendment 2, adding
that she thinks Representative Gara is correct in that the jury
in a cause of action resulting from an injury occurring at a
sports arena will be told whether the arena met with national
standards.
REPRESENTATIVE GRUENBERG said that if such is the case, he would
be satisfied, reiterating that he just doesn't want SB 175 to
change that. He asked Senator Seekins whether such a cause of
action would still be allowed under SB 175, adding that if the
answer is yes, he would withdraw Amendment 2.
SENATOR SEEKINS said he doesn't know whether there is a national
standard. He offered his belief, however, that SB 175 would not
immunize a sports arena that left one of the Plexiglas panels
down during a hockey game.
REPRESENTATIVE GRUENBERG withdrew Amendment 2.
CHAIR McGUIRE turned attention to Representative Gara's new
proposed amendment, which - because the amendment offered by
Representative Gruenberg was withdrawn - she then referred to as
[Conceptual] Amendment 2.
Number 2134
REPRESENTATIVE GARA made a motion to adopt his amendment, now
called [Conceptual] Amendment 2, which reads [original
punctuation provided]:
Insert at p 3 line 7
(d) Immunity under this section shall apply if
the injury is the result of the inherent risk of
the sports or recreational activity that was
provided, except insofar as the provider was
negligent, and the negligence caused the injury.
Number 2144
REPRESENTATIVE SAMUELS objected for the purpose of discussion.
REPRESENTATIVE GARA said:
This leaves the sanctity of the original language, so
that Senator Seekins's intent is clear. And so on
page 2 and on page 3 it states ..., if it's inherent
risk, you're not liable if that's the reason for the
injury, but then it just clarifies in a new subsection
(d), right after that discussion on page 3 ...
CHAIR McGUIRE interjected to clarify that the current
subsections following the insertion of this new subsection (d)
would be relettered accordingly.
REPRESENTATIVE GARA said that in essence, [Conceptual] Amendment
2 would clarify that if the injury is the result of negligence,
the immunity shall not apply. In this way, the focus of the
question will be, "Was it the result of the inherent risk or was
it the result of negligence?"
SENATOR SEEKINS opined that [Conceptual] Amendment 2 simply
restates the language already in the bill.
Number 2215
CHAIR McGUIRE suggested instead that perhaps page 3, line 2,
could be altered to say that the section doesn't apply if the
negligence was the cause of the injury, death, or damage.
Number 2231
REPRESENTATIVE GARA relayed that the committee aide has created
language that simply says, "This section does not apply to a
civil action based on the negligence of a provider."
CHAIR McGUIRE noted, however, that what she likes about
Representative Gara's language is that it says, "and the
negligence caused the injury."
REPRESENTATIVE GARA offered that that is why he, too, prefers
his language. "I think it protects the provider much better and
protects the consumer; the focus is on which one caused it," he
added.
SENATOR SEEKINS remarked that he understands Representative
Gara's intention. He returned to his earlier remark that the
court is first going to ask how a person got into the water:
was it because of the inherent risk or was it because of the
negligence. He opined that SB 175, as currently written,
already address that issue - if the person got into the water
because of the provider's negligence, there is a cause of
action, but if the person dies because of the inherent risk of
the activity, there isn't a cause of action.
REPRESENTATIVE GARA replied:
With all due respect, Senator Seekins, what will
happen is, the question in the case is always, "How
did she die." ... And one of the how-did-she-dies was
that she was rafting a glacial river, she got
hypothermia, she should have known that if she fell
into the river she would have got hypothermia. And so
once that's the how-did-she-die answer, ... there's a
very big risk the court is going to say, "Well that
was an inherent risk." And that's why we have to be
more clear in this bill or else we're just going to
throw a statute over [to] the courts and we'll have no
idea how it's going to be interpreted.
REPRESENTATIVE GARA said that if this concern of his is
addressed by an amendment, he would work with the minority
leader and members of the Senate to make sure that the bill is
not held up on the floor, because he thinks that the sponsor's
intention in introducing this legislation is good one.
Number 2345
CHAIR McGUIRE relayed that the committee aide has suggested the
following language change, such that on page 3, lines 2-3, it
would read, "an action or failure to take action that was a
result of an inherent risk, except insofar as the provider was
negligent, and the negligence was a proximate cause of the
injury."
CHAIR McGUIRE asked Senator Seekins whether it is just that he
doesn't even want the issue of negligence to be raised. "Is it
that you just want to say, plain and simple, "if you go rafting,
whether people are negligent or not, forget it." She indicated
that she could not tell, by the current language in bill, what
his intent is.
SENATOR SEEKINS again reiterated his belief that the court would
ask the question, how did the person get into the water, and
that if it was via negligence, then there would be a cause of
action. However, he added that if the person got into the raft
knowing he/she was going to get wet and that that would cause
health problems, then that is something for which the provider
should not be held liable.
TAPE 03-70, SIDE B
Number 2369
SENATOR SEEKINS then said that he wants people who are negligent
to still be held responsible. He opined that if a provider uses
the wrong size raft, or uses people that aren't trained, then SB
175 would hold them responsible for that negligence. He again
added, however, that SB 175 would not hold a provider
responsible for death, injury, or damage that was the result of
inherent risk.
CHAIR McGUIRE suggested setting HB 175 aside.
REPRESENTATIVE GARA opined that either his proposed language or
the committee aide's proposed language would make the statute
clear and accomplish everyone's goals. Without some change,
however, that goal will not be accomplished, he predicted. He
asked members to support one of the two suggestions, adding that
he is confident that if such is done, he can get the bill moved
on the "House side."
The committee took an at-ease from 11:43 a.m. to 11:45 a.m.
Number 2321
CHAIR McGUIRE, upon the committee's return, indicated that
during the at-ease, members came to agreement that [Conceptual]
Amendment 2 would do the following:
page 3, lines 2-3
delete: "injury, death, or damage was not the result
of an inherent risk of the sports or recreational
activity that was provided"
insert: "negligence was the proximate cause of the
injury, death, or damage"
Number 2296
CHAIR McGUIRE made a motion to adopt Conceptual Amendment 2.
REPRESENTATIVE GARA said he would be honored to be a co-sponsor
of Conceptual Amendment 2.
Number 2290
CHAIR McGUIRE asked whether there were any objections to the
motion. There being none, Conceptual Amendment 2 was adopted.
REPRESENTATIVE SAMUELS noted that page 3, line 12, contains a
typo: "sport of recreational" should read "sport or
recreational".
CHAIR McGUIRE announced that Amendment 3 would, after "sport" on
page 3, line 12, replace "of" with "or".
Number 2265
REPRESENTATIVE SAMUELS made a motion to adopt Amendment 3.
There being no objection, Amendment 3 was adopted.
Number 2257
REPRESENTATIVE GARA made a motion to adopt Amendment 4, to
delete lines 7-9 on page 3. The language being deleted reads:
Nothing in this section shall be construed to conflict
with or render as ineffectual a liability release
agreement between a person who participates in a
sports or recreational activity and a provider.
CHAIR McGUIRE indicated that she disagrees with [the goal of]
Amendment 4.
The committee took an at-ease from 11:52 a.m. to 11:54 a.m.
REPRESENTATIVE GARA relayed that there is an existing law used
by the courts regarding whether to uphold a release. He said he
did not know how the courts will interpret the language on lines
7-9, and that he did not know whether, "at this late hour, with
very little reflection," current law should be changed.
CHAIR McGUIRE said she thinks the court has the ability to
determine whether a release was signed under duress; whether the
waiver was clear; and whether the person signing the release was
of reasonable age, intelligence, and so on to understand what
he/she was signing. She opined that waivers are an important
part of life today.
REPRESENTATIVE GARA mentioned that what he doesn't want to have
happen is for a provider to use the language on lines 7-9 as an
incentive to create a waiver that says, "And you're also waiving
any action if I'm negligent or reckless."
SENATOR SEEKINS pointed out that the language on lines 7-9
starts off with "Nothing in this section shall be construed to
conflict with or render".
Number 2137
REPRESENTATIVE GARA concurred with that point and withdrew
Amendment 4.
Number 2125
REPRESENTATIVE SAMUELS moved to report CSSB 175(JUD)(efd fld),
as amended, out of committee with individual recommendations
[and the accompanying zero fiscal note]. There being no
objection, HCS CSSB 175(JUD) was reported from the House
Judiciary Standing Committee.
SB 176 - CIVIL LIABILITY FOR LIVESTOCK ACTIVITIES
Number 2090
CHAIR McGUIRE announced that the next order of business would be
CS FOR SENATE BILL NO. 176(JUD), "An Act relating to civil
liability for injuries or death resulting from livestock
activities."
Number 2087
SENATOR RALPH SEEKINS, Alaska State Legislature, sponsor of SB
176, relayed that this legislation was introduced in the prior
legislature and was crafted as part of a project by 4-H members.
He mentioned that at the time, both he and his wife were
involved in that project; that the legislation is patterned
after Oklahoma law; and that if SB 176 is adopted, Alaska will
be the last state to have a limitation of liability for
livestock activity, though some states have "contributory
negligence standards that apply directly to livestock
liability." He noted that he has worked with the American
Quarter Horse Association (AQHA) and other national
organizations to ensure that SB 176 complies with what is
happening in the rest of the nation, and that he is a member of
the AQHA's public policy board.
SENATOR SEEKINS said that SB 176 says a person assumes some
degree of risk when in the vicinity of livestock, because
livestock owners, even with the best of intentions, cannot
completely prevent accidents from happening. He assured members
that SB 176 does not protect livestock owners who act in an
unreasonable manner; rather, by reducing some of the liability,
the expectation is that an atmosphere will be created that will
encourage more livestock activity. He noted that Oklahoma has a
lot of livestock activity, which he attributed to its livestock
liability statutes. He said he would appreciate members'
support of SB 176.
CHAIR McGUIRE noted that 4-H members visited with her last year
in support of this legislation, and as a result of that and her
work on the "Worldwide Special Olympics Campaign," she'd come to
realize that many equestrian centers are reluctant to cater to
handicapped individuals because of liability issues. She
predicted that SB 176 will have profound consequences, adding
that she really appreciated what the 4-H members had to say
during their visit with her last year.
Number 1892
REPRESENTATIVE GRUENBERG said that although he could see the
need for the bill, he did have questions regarding a couple of
its provisions. He turned attention to page 3, lines 30-31, and
said it would seems to say that the owner of an enterprise
wouldn't be liable no matter how badly an employee acted.
SENATOR SEEKINS clarified that it says the owner could not be
held "vicariously liable" for the acts or omissions of a
participant or livestock professional. He offered the following
example:
If someone were to come in there and do something with
their animal that would cause ... damage to another
animal, the sponsor could not be held liable,
vicariously, for that action because you can't control
the actions of other participants ... or of another
professional. So I think it's just limiting the
vicarious liability exposure there ....
REPRESENTATIVE GRUENBERG suggested that by limiting vicarious
liability, the legislature would be going further than it ever
has before with regard to the issue of limiting damages.
SENATOR SEEKINS remarked that people are looking for new causes
of action, an example of which is using vicarious liability "to
get into the deep pockets even though someone was not
responsible for the action." He offered that the language on
page 3, lines 30-31, "is just clarifying that, ... [that] if
someone else causes damage and you weren't it, you can't be held
vicariously liable for someone else's activities." He added
that this language does not pertain to the behavior of
employees.
REPRESENTATIVE OGG mentioned that a good example of "this" is
bull riding: "You own the bull and you put it into the county
fair for people to ride on it, and this covers the activity of a
participant or a professional who's going to get on that bull,
and [if] he falls off of that bull, it's not your problem."
REPRESENTATIVE GRUENBERG said he now sees the point of that
language. He then turned attention to page 4, lines 1-2, and
noted that it says a person can waive his/her entire right to
recover damages.
Number 1715
SENATOR SEEKINS pointed out, however, that the damages that
language is referring to are those that result from an inherent
risk of a livestock activity, not those that result from
negligence.
REPRESENTATIVE GRUENBERG then turned attention to page 4, lines
17-18, which lists one of the things that could be included as
an aspect of the inherent risk of livestock activities, and
which read, "the potential of a person to negligently engage in
conduct that contributes to an injury or death during a
livestock activity". He remarked that the other proposed
aspects of inherent risk seem to focus on livestock or tack.
SENATOR SEEKINS offered the example of an incident that occurred
at the Alaska State Fair in Palmer during the Miller's Reach
fire. A lot of livestock from the surrounding area were
evacuated to fairgrounds and this resulted in very crowded
conditions. One woman chose to ride her horse despite these
crowded conditions, and when she fell off her horse because it
got spooked by other livestock, she sued the fairgrounds. He
said that the language on lines 17-18 is intended to address
such situations.
CHAIR McGUIRE asked Senator Seekins how he came up with the
definition of "livestock".
SENATOR SEEKINS said it was garnered from other states'
statutory definitions and input from the Alaska Department of
Fish and Game (ADF&G).
REPRESENTATIVE GARA, noting that peafowls and pigeons are listed
in the definition, asked whether any cases have been brought
because of damage caused by those creatures. Is there an
explosion of pigeon liability litigation out there?
REPRESENTATIVE GRUENBERG remarked that peacocks are vicious.
SENATOR SEEKINS added that peacocks are dangerous in some
respects because they are unpredictable. He pointed out that
his primary concern is with fairs and expositions. If one goes
to a fair or exposition and sticks a finger in the pigeon cages,
for example, there is the inherent risk of getting bitten.
REPRESENTATIVE GARA noted that the definition specifies that
dogs and cats would not be considered livestock.
SENATOR SEEKINS relayed that that specification is standard
language in all other states' statutes.
REPRESENTATIVE GRUENBERG, turning attention to the definition of
livestock, asked whether there would be future bills to add
other species to the list.
SENATOR SEEKINS said he didn't think so because the proposed
list is "pretty all-inclusive." In response to other questions,
he indicated that "domestic cow" includes cattle, bulls, steers,
and oxen; that elephants are not considered livestock; and that
SB 176 does not pertain to circus animals.
Number 1343
STEVE CONN, Special Projects Coordinator, Alaska Public Interest
Research Group (AkPIRG), opined that SB 176 will lead to
unintended consequences. He elaborated:
This expansion of livestock to include rabbits,
hamsters, guinea pigs, turkeys, chickens, and so
forth, and [characterizing] them, as a matter of law,
as being inherently dangerous, and then creating a
duty on the part of a participant "to make a
[reasonable] and prudent effort" - quoting from page
3, lines 17-18 - "to determine the ability of the
participant to safely manage" it ..., this could find
its way into pet shops [and] retail department stores.
I just think that the original intent, which relates
to things like rodeos, Palmer Fair, livestock shows
involving big animals, takes you in the direction that
you want to go.
But the pictures that jump into my head ..., in fact,
in some strange way, place additional duties on those
that manage these inherently dangerous animals like
the pony ride that finds its way behind the Sears mall
every year for kids, because it does appear that the
persons who are the potential victims here are also
minors as well as adults. And so I think there's been
overkill, in the drafting, to take you away - guide
you away - from your serious concerns.
And you are going to end up, by characterizing this
vast reach of animals as being inherently dangerous
because they're now considered livestock, in some
strange ways, you may end up raising the bar of
responsibility, rather than immunizing people who
manage these sorts of situations in a "Wal-Mart," or
in a pet store, or in a pony ride and other sorts of
circumstances. So I would strongly recommend, despite
the fact this bill has a long history, that it be held
over and focused to meet the sponsor and the [4-H
members'] fundamental concerns about large animals and
the dangers inherent in using, showing, managing, and
offering up to the public the large animals. ... Thank
you very much.
Number 1198
REPRESENTATIVE GARA said that the issue of the pony rides did
make him wonder whether they should exempt little kids from the
bill; for example, not have SB 176 apply to kids under the age
of 13.
SENATOR SEEKINS responded that the language in the bill is
"fairly uniform language in all the other states," and that
there have been no reports, of which he is aware, of unintended
consequences. He added that he hopes that "parents or guardians
would be responsible for whether they chose to put their child
... in a dangerous situation." He assured the committee that
should a child get hurt as a result of the operator of a pony
ride not paying attention, the operator would not be granted
immunity under SB 176.
REPRESENTATIVE GRUENBERG mentioned his belief that SB 176 will
help one of his constituents.
CHAIR McGUIRE, after determining that no one else wished to
testify, closed the public testimony on SB 176.
Number 1101
REPRESENTATIVE SAMUELS moved to report CSSB 176(JUD) out of
committee with individual recommendations [and the accompanying
zero fiscal note]. There being no objection, CSSB 176(JUD) was
reported from the House Judiciary Standing Committee.
SB 198 - DAMAGES RECOVERED BY POLICE/FIREFIGHTER
Number 1089
CHAIR McGUIRE announced that the next order of business would be
CS FOR SENATE BILL NO. 198(STA), "An Act relating to recovery of
civil damages by a peace officer or fire fighter; and providing
for an effective date."
Number 1081
SENATOR RALPH SEEKINS, Alaska State Legislature, sponsor, said
that SB 198 revises the common law known as the "fire fighter's
rule." Currently, this common law precludes fire fighters and
police officers from recovering civil damages for injuries
caused by any negligent act inflicted while on duty. However,
it doesn't distinguish between negligent acts requiring the fire
fighter or peace officer's response and negligent acts that are
unrelated to the reason the fire fighter or peace officer was
required to respond.
SENATOR SEEKINS offered the following example: Under current
common law, a police officer is precluded from suing for damages
suffered as a result of being struck by a drunk driver during
the course of transporting a prisoner to the courthouse, even
though the drunk driving - the negligent act - is unrelated to
the duty the officer is performing. In such a situation under
SB 198, however, the police officer would be able to sue for
damages. If a peace officer is injured while pursuing a drunk
driver, though, under SB 198 the peace officer would still be
precluded from bringing suit, because such injuries would have
occurred in the line of duty. He characterized SB 198 as a
good, commonsense bill, which will allow firefighters and peace
officers, and their employers, to recover damages that they are
currently unable to recover.
CHAIR McGUIRE called SB 198 a good bill, and mentioned that she
introduced similar legislation.
SENATOR SEEKINS noted that his example of an officer being hit
by drunk driver while transporting a prisoner was "a thumbnail
of a real case."
CHAIR McGUIRE relayed that in Moody v. Delta Western, Inc., the
Alaska Supreme Court upheld the current common law with regard
to damages sustained during the course of duty, but with the
caveat that one shouldn't be preempted from seeking damages for
any unrelated act of negligence. She surmised that SB 198
simply clarifies that opinion. In response to a question, she
also surmised that if fire fighters are called to the scene of a
fire and then are shot at by snipers, they would not be able to
recover damages.
REPRESENTATIVE GARA said he is worried that they would be
limiting the rights of fire fighters and police officers too
much. He asked whether subsection (a) of SB 198 still allows an
injured fire fighter or peace officer to receive worker's
compensation and/or insurance benefits.
CHAIR McGUIRE and SENATOR SEEKINS said yes.
REPRESENTATIVE GARA offered the example of a fire fighter being
struck by a drunk driver on the way to or from a fire. He said
he is worried that the language in SB 198 might not be
sufficient to accomplish the sponsor's goals
Number 0760
MITCHELL GRAVO, Lobbyist for Anchorage Police Department
Employees Association (APDEA), indicated that the APDEA is
comfortable that SB 198 does accomplish the sponsor's goals.
SENATOR SEEKINS observed that subsection (b) says, "this section
does not apply to a negligent act or omission that is unrelated
to the activity that created the need". The negligent act or
omission referred to in subsection (b) is one which is in no
sense related to the reason the fire fighter or police officer
is at a particular location at a given point in time.
REPRESENTATIVE GARA indicated that his concern is satisfied.
REPRESENTATIVE GRUENBERG noted that "fire fighter" is defined in
SB 198, but does not include state fire fighters. He asked
Senator Seekins whether he would be amenable to an amendment to
include state fire fighters in the definition.
SENATOR SEEKINS relayed that "forestry service personnel" are
not looked at as falling under the current definition of fire
fighter, or as falling under the current "fire fighter's rule."
Thus, if forestry service personnel are struck by a drunk driver
on the way to a forest fire, they are not now precluded from
recovering damages.
REPRESENTATIVE GRUENBERG asked Senator Seekins whether he would
be amenable to an amendment that would clarify this.
SENATOR SEEKINS opined that such an amendment would not change
how the courts will interpret the bill.
Number 0471
REPRESENTATIVE GARA moved to report [CSSB 198(STA) out of
committee with individual recommendations and the accompanying
zero fiscal note]. There being no objection, CSSB 198(STA) was
reported from the House Judiciary Standing Committee.
CONFIRMATION HEARINGS
Regulator Commission of Alaska
Number 0420
CHAIR McGUIRE announced that the committee would next consider
the appointment of Kate Giard to the Regulatory Commission of
Alaska (RCA). She asked Ms. Giard why she wished to serve on
the RCA.
Number 0340
KATE GIARD, Appointee, Regulatory Commission of Alaska (RCA),
said that she is very interested in the position and has a
natural tendency to go to areas that need some significant
improvement in process. She elaborated:
I have an ability to evaluate and work through
business-process difficulties. And it sounds like,
... in addition to the extraordinarily complex
technical issues that ... the [RCA] deals with, ...
there also seems to be some issues within the [RCA]
and the activities of the [RCA], and problems getting
dockets through. And ... that's the ... part that
really excites me about the job. Sitting and taking
testimony, ... that's not really my bag - I can do it
and I'll do it well - but I'm very interested to get
into the [RCA] and see if there [aren't] smart ways
that we can make the process a little more responsive
to business, a little faster, and yet balance that
with the very important needs of the consumer. So, it
sounds like a foolish job to want ..., but
nevertheless I do desire it. ... I'm quite looking
forward to it.
CHAIR McGUIRE relayed that Representative Gara speaks highly of
Ms. Giard's ability to tackle RCA issues.
REPRESENTATIVE HOLM asked Ms. Giard to comment on the issue of
balancing consumer protection and carrier profitability.
TAPE 03-71, SIDE A
Number 0001
MS. GIARD described what occurred while she was working for
Alaskan Choice TV. She indicated that this experience showed
her that when competitors come into a monopoly market, although
it creates difficulties for the incumbent carrier, it does
benefit consumers. She relayed that in 1998, the then-chairman
of the Federal Communications Commission (FCC) said that Alaska
is leading the way for local competition in the
telecommunications industry. Thus, from a purely economic
standpoint, [the Telecommunications Act of 1996] has had a
terrific impact on Alaska, and the citizens have benefited from
the growth of competing companies. She remarked that although
it was a painful process, a balance has been achieved between
ensuring the economic viability of providing telephone service
in Alaska and ensuring benefits to consumers.
MS. GIARD said that her goal as a commissioner would be to
ensure that a vibrant competitive economy is maintained across
the state. She went on to say:
The way that you do that, as a commissioner, is that
we need to move quickly on the laws that you pass and
we need to make interpretations so that we're not
slowing down the economic drivers for those "telcos."
The last-mile issue, ... that's got to be resolved by
legislation. When we take a look at it, we need to be
sure that the decisions that we make - and the
profitability that we establish - provide the
incentive for those companies ... to continue to want
to invest in infrastructure, because infrastructure
development, for this type of entity, is what's going
to keep the competition alive.
CHAIR McGUIRE mentioned that the committee has spent time trying
to determine what the legislature's role ought to be with regard
to regulating telecommunications. She asked Ms. Giard to
comment on the issue of legislative involvement with the RCA.
Number 0330
MS. GIARD responded:
I believe that what I have been hearing from the [RCA]
and the responses that I get when I talk about being
on the [RCA] ... is that the [RCA], ... in the past,
... has not adequately responded to the balance
between ... the need and the desire for competition
and the need and desire for consumer protection. And
that, I think, has resulted in the very ... reasonable
questions and issues that both [General Communications
Incorporated (GCI) and Alaska Communications Systems,
Inc. (ACS)] have brought up in the past and said,
"Okay, the consumer protection agency - the RCA - is
not doing enough to respond to our business needs
therefore we're going to take our efforts to the
legislature ... and we're going to make the
legislature do that job."
... I would ask that you give us some time to make us
do our job, and I read something in the paper today
that said we needed a report by November 15, ... but
we really have some clear direction ...: that we need
to move quickly, we need to respond, and we need to
keep in mind that these businesses are good for our
economy, and that we need to not only look at the
technical regulations but we also have to have some
kind of business sense about the decisions that we
make. It's very important.
So I would ask that the legislature consider ...
moving forward on the governor's initiative, and
giving us some time. You can always yank us down
there and say, "Explain what you've been doing." And
I'm sure if I do a good job, you're going to be
hearing about it because a lot of people are going to
be crying and screaming. But it needs some time, and
it needs the full faith and backing of the legislature
for a period of time to show that it can respond to
the needs of telcos. I probably understand, having
lived through it, ... what the desires and the needs
of the telcos are.
CHAIR McGUIRE asked Ms. Giard whether she believes it
appropriate for the legislature to ask the RCA to come back to
the legislature by November 15 with policy decisions pertaining
to certain areas.
Number 0575
MS. GIARD said she is happy to come back and report, and is
excited to get in and work with the other commissioners. She
added: "I'm hoping that that's the asset I bring to the [RCA]
...; I can get in there and I can ferret around and I can find
more effective ways ... of getting the job done, and that will
respond ... to the business needs of those telcos."
CHAIR McGUIRE asked Ms. Giard what resources she will seek out
in making her decisions. Chair McGuire mentioned that her
concern is that old decisions will be maintained even though
they may no longer be appropriate.
MS. GIARD said that she is not a very good follower, but that
she does have a great deal of personal integrity; therefore, in
doing her job on the RCA, she will not automatically be relying
on past decisions, though she will stand by them if she finds
that they are still appropriate. She relayed that she is not
unfamiliar with either the Telecommunications Act of 1996 or the
amount of research it will take to develop regulations. She
said that she will use all the resources at her disposal to do
her job to the best of her ability. She added that she is not
afraid to formulate her own decisions, take them forward, and
argue for them, and is not afraid to work together with other
members of the RCA and keep pushing to come up with a consensus
that she can, with honor, take forward.
CHAIR McGUIRE said she hopes Ms. Giard will not be afraid to
admit it when mistakes are made or when circumstances change.
MS. GIARD indicated that she is not afraid to do so, and offered
examples of having done so in the past.
REPRESENTATIVE GARA said he is glad that Ms. Giard is willing to
serve on the RCA. He mentioned that there is a sense in the
legislature that the RCA is "a little bit rudderless" and needs
to make a strong statement in response to the concerns being
brought before the legislature every year by the
telecommunications industry. Referring to the RCA legislation,
he asked Ms. Giard whether she feels that the RCA is going to be
willing to address as many issues as possible before November 15
or, as some legislators fear, is the RCA simple going to do as
little as possible to address as few issues as possible.
Number 1017
MS. GIARD expressed confidence that she and the rest of the
members of the RCA will be working hard to address as many
issues as possible. She indicated that she wants the
legislature's full backing in order to be better able to work
towards achieving the governor and legislature's requested
changes. She asked the legislature to confirm her appointment
to the RCA, stating that she has the background and experience
and will work very hard to implement the changes necessary to
get the RCA back on the right track.
REPRESENTATIVE OGG said that after listening to Ms. Giard's
testimony, he is excited by her appointment to the RCA. He
asked her whether she sees a role for the RCA when service areas
become fully competitive.
MS. GIARD said that what amounts to success for the RCA is
bringing deregulation to the telephone industry, and that such
success does not frighten her in terms of her losing her job
with the RCA. She predicted that Alaska will be able to take
the Telecommunications Act of 1996 and bring true market
competition to the primary markets of Anchorage, Fairbanks, and
Juneau. She opined that that type of success will be what's
best for both the market and the consumer. She encouraged the
legislature to give its full faith to the RCA to make the
desired changes.
MS. GIARD, in response to another question, indicated that a
four-year sunset period would be more helpful than a shorter one
because whenever there is the question of whether an entity or
group will continue to be around, not a lot of actual business
activities take place during the few months prior to an
extension being granted or an administration remaining the same
or retaining a group or entity. Noting that both last year and
this year the RCA faced a sunset, she remarked that one doesn't
want the staff of an organization to be in a constant flux,
because it's not a good operating environment.
MS. GIARD opined that members of the RCA are not paid well given
the quality of people that are appointed and the quality of work
they are expected to perform, adding, "I know what you want, I
understand what you want, you want a very good and high
qualified individual to come and do that work, and I'm willing
to give you a period of time of my life to do that."
Number 1316
MS. GIARD recommended to the committee that instead of having
the RCA face a sunset every year, the legislature should change
the laws to allow for a review of each commissioner on a yearly
basis to determine whether he/she has performed as expected.
Then, if a commissioner has preformed as expected, he/she could
be given a raise, but if he/she has not performed as expected,
then he/she could be removed from the RCA. The commissioners
are the people who will either do or not do what the legislature
wants, not the staff or the body of the RCA. The body of the
RCA, the concept of the RCA, is a very good thing for Alaska,
she opined, adding "regulation balanced by consumer needs
balanced by economic needs." What the legislature wants to
know, she surmised, is whether the commissioners are going to
respond to the various needs of the state in a timely fashion.
REPRESENTATIVE ANDERSON said that he has not been impressed with
some of the RCA's wavering on issues. He asked Ms. Giard to be
neutral in her deliberations and open-minded to deregulation,
and said he hopes she will base all her decisions on what's best
for the consumer and on fairness between competitors, which, he
opined, has not been done with regard to the telecommunications
industry. He said he has been wondering why the legislature
should even deal with the RCA given that Dave Harbour, a newly
appointed commissioner of the RCA, has relayed to him a
preference that the legislature not make any statutory changes
to the RCA's authority. He noted that some entities have
recommended that a "hearing-officer infrastructure [be]
implanted into the RCA." He asked Ms. Giard to comment on that
recommendation.
MS. GIARD acknowledged that if utilized properly, a hearing
officer might be beneficial. She surmised that Mr. Harbour's
reluctance to have the legislature make statutory changes at
this time stems from a desire, which she also has, to be allowed
to go into the RCA, see what is happening, and then make
recommendations for statutory changes if needed. She suggested
that such a plan of action will ultimately give the legislature
a better understanding of what changes really ought to be made.
"My vision for [the RCA] is that it becomes less isolated and
more integrated with the legislative process," She added.
Number 1579
REPRESENTATIVE HOLM thanked Ms. Giard for being willing to serve
on the RCA, which he called a very important commission. On the
issue of sunsets, he noted that [House members] only get two
years and it doesn't affect how hard they try to do their work.
He said he is concerned with what the legislature's oversight
position truly is with regard to the RCA, adding that he did not
want to be passing legislation that impedes the RCA's progress
and ability to look out for consumers. However, he said he also
doesn't want to see businesses bankrupted or impeded in their
ability to improve technology due to RCA regulations. In
conclusion, he wished Ms. Giard [good luck] in her endeavors.
CHAIR McGUIRE noted that currently, the sunset is the only way
the legislature has of sending the RCA a message that it wants
to see some changes, adding that it isn't just the commissioners
that ought to have periodic reviews, because the RCA is more
than just its commissioners, it is also the staff and the way it
goes about conducting business. She too wished Ms. Giard [good
luck] in her endeavors.
MS. GIARD said that although it is up to the legislature to
determine the length of the sunset period, she sees a short
sunset period as creating a tremendous amount of disruption.
She pointed out that good, progressive, thoughtful change takes
time, an ability to communicate, and a convincing of staff that
suggested changes ought to be implemented. She asked the
committee to trust that she will work very hard, during whatever
period of time the RCA is extended, to make sure that the next
time the sunset issue is before the legislature, it won't
involve a long, drawn-out process.
CHAIR McGUIRE thanked Ms. Giard for her willingness to serve,
and relayed that the committee supports her appointment.
Number 1854
CHAIR McGUIRE asked whether there were any objections to
advancing from committee the nomination of Kate Giard as
appointee to the Regulatory Commission of Alaska. There being
no objection, the confirmation was advanced from the House
Judiciary Standing Committee.
SB 93 - ADVERSE POSSESSION
Number 1862
CHAIR McGUIRE announced that the next order of business would be
CS FOR SENATE BILL NO. 93(JUD) am, "An Act relating to
limitations on actions to quiet title to, eject a person from,
or recover real property or the possession of it; relating to
adverse possession; and providing for an effective date."
Number 1870
SENATOR THOMAS WAGONER, Alaska State Legislature, sponsor, said
that the purpose of SB 93 is to provide more protection to
Alaska's private landowners, both large and small, by limiting
the ability of others to take private property via adverse
possession. He described adverse possession as an outdated
doctrine used to transfer land from an owner who is not making
use of his/her property to someone who is making use of it.
Current law imposes a time limit during which an action can be
brought to recover property; specifically, AS 09.10.030 states
that the action must be brought within 10 years. Senate Bill 93
would change that provision such that a landowner could bring an
action to recover property at any time if his/her interest in
the property is recorded under AS 44.17.
SENATOR WAGONER said that AS 09.45.052 deals with adverse
possession when "color or claim of title is involved." The time
limit in this provision is seven years, which is not changed by
SB 93. Additionally, proposed provisions of SB 93 ensure that
there will still be reasonable ways of settling disputes, and
that certain public services will be retained. He warned that
some provisions of SB 93 are contentious. He turned attention
to page 2, line 17, subsection (c), and said it allows public
utilities to continue to gain easements for utility purposes
after 10 years of use.
SENATOR WAGONER then read a letter he wrote to Tom Irwin,
Commissioner, Department of Natural Resources (DNR) [original
punctuation provided]:
Dear Commissioner:
It has been brought to my attention that there is some
concern that the wording in Section 4 subsection (c)
of Senate Bill 93 would give public utilities the
ability to gain interest in easements on state land.
This issue and similar issues have been discussed many
times with our legal department. I have been told
from the Legislative Legal department that public
utilities would not have any more rights than they
currently have, and currently they cannot take state
of federal lands through adverse possession.
It is not my intent, or the intent of the legislature
to give public utilities the ability to gain an
easement on state or federal land for utility
purposes.
Number 2054
SENATOR WAGONER said that SB 93 would not to abolish all aspects
of adverse possession; instead, its purpose is to eliminate the
possibility that a landowner will lose property to a squatter
who has no claim to the property. He noted that the state and
federal government have exempted themselves from adverse
possession laws because it is too costly and time consuming to
police their vast lands, and SB 93 simply offers that same
protection to private property owners. He reiterated his belief
that SB 93 will not give rights to any "entity, utility, or
other" that such do not already have, adding that it is not his
intention to have the bill do so.
REPRESENTATIVE GARA asked whether SB 93 takes away or limits the
state's rights with regard to public access easements.
SENATOR WAGONER said no, and relayed that "there is a section in
there that covers that for [the Department of Transportation and
Public Facilities (DOT&PF)]."
REPRESENTATIVE GARA said that although SB 93 is intended to
limit the ability to claim adverse possession, according to his
interpretation, the provisions seem only to expand the ability
to claim adverse possession. He asked Senator Wagoner to point
out the provision that does what he intends.
SENATOR WAGONER said, "That was in Section 1, the 10-year time
limit."
Number 2149
VANESSA TONDINI, Staff to Representative Lesil McGuire, House
Judiciary Standing Committee, Alaska State Legislature,
clarified that Section 2, proposed AS 09.10.030(b), contains the
language Representative Gara is seeking.
SENATOR WAGONER noted that that language begins with, "An action
may be brought at any time by a person who was seized or
possessed of the real property".
Number 2171
JONATHAN TILLINGHAST, Lobbyist for Sealaska Corporation
("Sealaska"), explained that taken together, Sections 1 and 2
remove the 10-year statute of limitations for the landowner of
record to recover his/her property, and this has the effect of
repealing the doctrine of adverse possession for the record
owner. However, adoption of Sections 1 and 2, he added, would
eliminate the ability of the state and utilities to obtain
easements by adverse possession. He noted that in order to
rectify this situation, the language in Section 4 is necessary;
Section 4 does not expand any rights, it simply puts back the
rights that Sections 1 and 2 would eliminate. In response to a
question, he indicated that SB 93 will not change anything with
regard to easements.
REPRESENTATIVE GARA turned attention to page 2, line 22, and
noted that it did not specifically mention "public use". He
asked why the bill refers to "public access" but not "public
use".
MR. TILLINGHAST asked for an example of "public use".
REPRESENTATIVE GARA then noted that the language on line 23 does
specify "trails", and surmised, therefore, that his concern has
been addressed.
SENATOR WAGONER explained that [the DOT&PF] suggested the
language in that part of the bill and has no concerns about it.
MR. TILLINGHAST said that the terms "trails" and "public access
purposes" were used to specifically preserve the rights of the
state and municipalities to acquire access across private lands
in order to reach public-use areas and public trails.
Number 2265
REPRESENTATIVE ALBERT KOOKESH, Alaska State Legislature, noted
that he is chairman of the board of the Sealaska Corporation and
a member of Angoon's village corporation. He indicated that
Alaska Native corporations will benefit from SB 93, adding that
such corporations own a total of 44 million acres of land in
Alaska and this makes them the second largest landholder in
Alaska next to the state. Senate Bill 93 is important to the
corporations because of it is impossible for them to police all
of their lands 24 hours a day, seven days a week, all year long.
REPRESENTATIVE KOOKESH said that he wants to make sure that
Native corporations, as landholders, are protected under the
law, because in this regard, they are no different than
individual landholders. He asked the committee to be cognizant
of the fact that SB 93 is very important to all private
landowners, particularly those who own lands "in fee simple."
He said he appreciates the sponsor bringing SB 93 forward.
CHAIR McGUIRE said that her concern with this bill is that there
really is a legitimate public-policy argument favoring the
existence of adverse possession. She then briefly relayed some
of the circumstances from which adverse possession arose.
TAPE 03-71, SIDE B
Number 2364
REPRESENTATIVE KOOKESH also asked the committee to be cognizant
of the fact that private landowners have to be very careful
about maintaining control of their lands, adding that this is
particularly true for Native corporations because they know they
will not be getting any more land, and so every piece of the 44
million acres of land owned by Native corporations is very dear
to them. He said that he wants the committee to make sure that
the rights of private landowners are protected.
MR. TILLINGHAST, in response to a question, said that one cannot
squat on federal, state, or municipal land. He added, "There is
... no better indictment of the doctrine of adverse possession
than the zeal with which the government resists any effort to
apply that doctrine to it."
CHAIR McGUIRE pointed out that under 43 U.S.C.A. 636(d)(1), an
exception to the general rule of adverse possession has already
been carved out for Native lands.
Number 2268
SENATOR SCOTT OGAN, Alaska State Legislature, remarked that SB
93 attempts to change hundreds of years of common law.
Regarding the statement made by Representative Kookesh that a
landowner can't monitor his/her land 24 hours a day, seven days
a week, all year long, Senator Ogan pointed out that under
current law, the landowner need only police his/her developed
land once every ten years, adding that undeveloped land cannot
be adversely possessed. He said that he is confused enough
about adverse possession to warrant his asking the committee to
consider holding the bill over the interim for the purpose of
researching the issue thoroughly and then looking at it from a
fresh perspective next session.
CHAIR McGUIRE, noting that the committee would be taking a
recess for the purpose of a House floor session, asked Senator
Ogan to discuss his concerns with the bill's sponsor during that
time.
The meeting was recessed at 1:27 p.m. to a call of the chair.
Number 2185
CHAIR McGUIRE called the meeting back to order at 6:10 p.m.
Present at the call back to order were Representatives McGuire,
Anderson, Holm, Ogg, Samuels, and Gara. Representative
Gruenberg arrived as the meeting was in progress.
MR. TILLINGHAST explained that Sealaska has about 280,000 acres
of land, which is similar to government land in that it's very
remote and hard to police. Most of the land is Alaska Native
Claims Settlement Act (ANCSA) land, but a fair amount of it, and
a growing proportion of it, is not ANCSA land. He mentioned
that Sealaska, like other Native corporations and Native
regional corporations, is trying to expand its land base by
acquiring non-ANCSA lands, which do not have the protection from
adverse possession afforded by federal law to undeveloped ANCSA
lands. Sealaska ran into some squatter problems with some non-
ANCSA lands in Cordova and on Prince of Wales Island. He said
that although Sealaska succeeded in evicting the squatters, it
did so at significant cost, and, as a result, Sealaska asked him
to look into the possibility of a legislative solution to its
problem.
MR. TILLINGHAST concurred with Chair McGuire's synopsis of the
origins of the doctrine of adverse possession, and noted that
the length of time it takes to acquire property by adverse
possess land shrinks as one moves westward; for example, on the
east coast it takes approximately 20 years, but on the west
coast it can take as few as 5 years. He said that the days when
individuals could take land out of corporate ownership are over,
and concurred that Native corporations are some of the largest
landowners in the state, but added that the state has not
adopted a policy of wanting to take land away from Native
corporations for the purpose of giving it to private
individuals.
MR. TILLINGHAST opined that the only continuing social utility
of adverse possession is "sort of at the fringes." For example:
Cleaning up the fence that got built two feet on the
wrong side of the property line; or straightening out
access problems, whether it be a public trail or a
utility easement or a [DOT&PF] project; or kind of the
defective deed problems where somebody is claiming
property under color of title but there's something
wrong with the deed that they've got.
Number 2013
MR. TILLINGHAST said that Sealaska has been working on this type
of legislation for several years, but the problem that has
arisen in the past is that the drafters took on both the core
problem of bad-faith squatters attempting to take property away
from the owner and the residual issues in which adverse
possession still performs a valuable social function. He
relayed that SB 93 is much narrower in that it goes out of its
way to preserve the useful part of adverse possession while at
the same time getting rid of what he called squatters' rights in
which a bad-faith trespasser comes onto someone's land for the
express purpose of stealing it. He reviewed one of the problems
earlier versions of the legislation had, and assured the
committee that SB 93 no longer has that problem. However, in
order to fix that particular problem, SB 93 has been worded in
such a way as to appear to grant rights of adverse possession to
the state and to utilities that they don't already have, though
it in fact does not do so.
REPRESENTATIVE GARA said he just wants to make sure that the
provision defining the state and its subdivisions' rights to
adverse possession is not being made narrower than it currently
is. He asked whether the state's rights to adverse possession
is currently defined in statute.
[Chair McGuire turned the gavel over to Vice Chair Anderson.]
MR. TILLINGHAST said that the state's rights to acquire property
by adverse possession would fall only under the general statute
that is being changed by Sections 1 and 2 of SB 93; there is no
separate statute specifically pertaining to adverse possession
by the state. In response to another question, he said that the
state gets its adverse possession rights via AS 09.10.030, as
does everybody else. Sections 1 and 2 of the bill take those
rights away, and then Section 4 adds those rights back in for
the state.
Number 1857
DARYL L. REINDL said that both he and the attorney he's hired
for his adverse possession action are unable to determine what
the language in SB 93 means. He said that he is assuming SB 93
will take away his rights of adverse possession, specifically
regarding his action pertaining to land in the Wrangell-Saint
Elias National Park and Preserve. He offered details of his
action and the process he'd undertaken, and said that he is on
the brink of acquiring quiet title. He remarked, however, that
perhaps SB 93 will not apply to his situation, though his
attorney cannot assure him of that.
[Vice Chair Anderson returned the gavel to Chair McGuire.]
MR. TILLINGHAST opined that SB 93 would not have any affect on
Mr. Reindl's action because Section 5 says that [the changes]
apply only to actions that have not been barred before the
effective date of the legislation. Mr. Reindl's right has
vested, he added, thus SB 93 would have no effect on it.
MR. REINDL asked whether the bill differentiates between
developed and undeveloped property.
MR. TILLINGHAST said it does not. He reiterated that if Mr.
Reindl has possessed the land in question for a number of years,
he has a vested right to his adverse possession claim, and
therefore his claim would not be affected by SB 93.
MR. REINDL asked if the same would be true if he were to be
starting the exact same process with similar property today.
MR. TILLINGHAST said that if such were the case, SB 93 would
apply and thus Mr. Reindl's action would be affected.
MR. REINDL said he didn't think that was fair.
Number 1677
RONALD L. BAIRD, Attorney at Law, noted that he is a real estate
lawyer and a condemnation lawyer, has been so for 25 years, and
has litigated adverse possession claims. He relayed that he'd
sent the committee a letter addressing some of his concerns,
adding that he disagrees with most of Mr. Tillinghast's
comments. Mr. Baird went on to say:
The law of adverse possession is a body of law that
the courts use ..., among other legal principles, to
decide who owns real estate. It has an ancient
history, but it has a current utility, and there's no
commentators or judges, that have applied this law in
recent cases, that are calling for its repeal. As it
currently stands, it serves three policies. The first
is, recorded title documents often contain errors by
laymen, surveyors, title companies, and, yes, lawyers
[too] make mistakes.
The second principle is that what adverse possession
says [is that] eventually we must conform the record
title to what has actually occurred on the ground,
after giving the record title owners multiple
opportunities to vindicate their rights. It says, and
it has said for centuries, that ownership of property
is not free of obligations: You must come forward
like any other litigant, eventually, and assert your
right or you lose it. So it prevents stale claims
from being in the court.
So the doctrine does not condone thievery of property
from the rightful owner; it decides who the rightful
owner is and has been. It has been helping to decide
that question for centuries. The doctrine in its
various forms has been applied in more than 20 cases
in Alaska since statehood. ... The result in none of
those cases has been analyzed by either [Legislative
Legal and Research Services] or anybody else to say
this is the changes we're making; none of the justices
in any of those 20 cases ever called upon or
questioned the basic principles of adverse possession,
suggesting its repeal. The doctrine is followed in
all other 49 states.
The bill before you is justified as eliminating the
rights of squatters. My question to you [is], who are
these squatters and do they constitute a significant
problem. A squatter, as the bill proponents would
make it out, is someone who knowingly goes on remote
land, without any belief in their ownership, remains
there for 10 uninterrupted years, and then goes to
court and brings a very expensive proceeding to
vindicate their title. So defined, there's no such
squatter that's ever appeared in a reported case of
the Alaska Supreme Court.
Number 1527
MR. BAIRD continued:
Common sense says that these squatters are probably
not there. I own property up by Talkeetna that's
eight miles from the nearest road. I've seen people
go in there over the years with the view that they're
going to live there year around, and what happens is
they stay there about two years. Why? Because it's
darn hard work to live out in the rural area. All you
have to do is put up one year's worth of firewood to
realize that it's not ... an easy thing to do in the
state of Alaska. But this bill assumes that those
people are there in significant numbers, they stay for
eight more years than my experience [shows], and
they're the sort of people that are going to hire
lawyers and come in and understand this complex body
of law and apply it.
I submit to you that the squatter is mythical. But
let's assume that he's not. What the committee has
... not been told is how this bill affects the
numerous cases where adverse possession has actually
been applied. Senator Robin Taylor, when he spoke
against this bill on the Senate floor, described cases
from his own personal practice, [and] ... said the
results would be different than ... [the] outcome he
obtained for his client. And if we took the committee
through these cases, ... my prediction would be you
would not come away with an unequivocal conviction
that injustice has been done. But Senator Taylor also
raised the question about the constitutionality of
this.
And apparently Mr. Tillinghast addressed that question
with [Legislative Legal and Research Services], and
you have a memorandum dated May 8 from [Legislative
Legal and Research Services] attempting to address
that. Mr. Tillinghast stated that there has never
been litigation addressing the relationship between
adverse possession and the just compensation clause of
the Alaska [State] Constitution. That is simply
incorrect. The case is Alt v. State, 688 P.2d 951,
1984. Does this bill track that case? I don't know.
Did [Legislative Legal and Research Services] address
whether this bill tracks that case. It certainly did
not.
Number 1428
MR. BAIRD went on to say:
What they appear to say in this memo, they agree that
there's no constitutional law. And with my ethical
duty clearly in mind, I'm telling you this: Alt v.
State is a controlling case that has not been
addressed and you do not have a legal judgment
rendered on that. But even beyond that, you do not
have a legal judgment on the federal constitutional
law of just compensation - for which not only is there
an issue but there is at least a fiscal risk if not a
fiscal impact - which I'd be glad to take a question
on after I've completed my remarks.
So what has happened here is, you've got a body of
common law - it's not in the statutes, it fills 342
sections in Corpus Juris Secundum, a legal
encyclopedia; ... [and] the bill before you wipes all
of that law off and then attempts to come back and
provide what is socially useful. I submit that that
is an inherently flawed approach to dealing with the
squatter if the squatter is a problem and if we could
define him.
But ... the drafters have not yet addressed at least
two other problems that are out there in the case law.
The first is the oral gift of land. There's an Alaska
Supreme Court case where a granddaughter received a
gift of land from her grandparents and doesn't get a
recorded instrument. She improves the property, it's
clearly open and visible, but through the ...
machinations that happen with record title, she ends
up dealing with somebody that has a record title and
who tries to evict her. I can tell you for certain
that if this bill goes through, that case result is
reversed.
The other area [that] is not addressed by this ...
bill is the private driveway cases .... What came
back into the bill was public and utility prescriptive
rights, but there's a whole bunch of cases out there
that deal with the driveway disputes, which are
private prescriptive rights.
Number 1314
CHAIR McGUIRE invited Mr. Baird to fax the committee some
possible amendments that would address his concern.
MR. BAIRD said he appreciates that offer, and elaborated on his
concern:
We're trying to ... fit about 342 sections of common
law ... back into this bill. ... If ... there is a
squatter problem and there is an excessive burden on
some landowners, the way you get to that is, ... you
can lengthen the period of time that adverse
possession has to occur before it vests title, ... or
you can ... can define the class of lands to which
adverse possession does not apply.
And incidentally, the reason why [state] and local
government lands are not subject to this doctrine is
the same reason why they're not subject to punitive
damages. The principle is, you don't punish the
public - state or local public - for failures or
omissions of government officers. In other words, if
the government officers don't take action, you don't
punish the public with loss of public lands [for]
their failure. That principle simply does not apply
in the context of the private property owner where,
for centuries, one of the burdens of property
ownership has been, you must look out for your rights.
REPRESENTATIVE GARA asked whether common law contains the
exemption of state lands from adverse possession.
MR. BAIRD said that in some states it's in the common law and in
other states - one of which is Alaska - it's located in statute.
Continuing on with his testimony, he said:
I suggested two fairly common and legislatively
precedent ways of dealing with the problem: either
define the land that you don't want the law to apply
to, or lengthen the prescriptive period. There's a
third approach, which is to define the squatter. And
instead of saying, as Section 2 of the bill does,
we're going to throw out adverse possession, you would
instead say the law of adverse possession, or the
principle of this citation, does not apply to this
litigant, or this class of persons. And then you
would go to find this person that we came to feel is a
problem and shouldn't have the benefit of this law.
Number 1123
... Either of those three approaches would leave real
estate titles much more certain; it would leave the
law of real estate, which is a pretty stable body of
law, the least affected. And I'm prepared to
volunteer my time and there's other lawyers who could
work with the chair to develop a technically feasible
bill along those lines if we're given the time. But
... most of my colleagues in the real estate bar are
unaware that this bill is even out there. So, if we
were allowed to do that, what we could bring back to
you would be a surgeon's scalpel dealing with this
particular problem; what you have before you is a
sledgehammer, it does a great deal of disturbance to
the existing law and it raises constitutional
questions, both under the [Alaska] State Constitution
and the federal Constitution. Thank you very much.
CHAIR McGUIRE said she did not disagree with Mr. Baird's
comments. She asked Mr. Baird to write out some suggested
language changes encompassing the approaches he's mentioned and
fax them to the committee within the next hour. She said that
she has deep concerns about SB 93, for example, that it's overly
broad and that it changes hundreds of years and pages of common
law. She mentioned that she would not be able to hold the bill
over; thus any suggested language changes should be faxed to the
committee as soon as possible.
REPRESENTATIVE GRUENBERG asked whether the Alaska statute
pertaining to this issue requires a clear and convincing
standard of proof.
MR. BAIRD said it does not.
REPRESENTATIVE GRUENBERG said he thought that such a standard
should be included in the statute.
REPRESENTATIVE GARA said he is wondering whether "public use"
should be included in the statute as well.
Number 0896
MR. BAIRD responded:
The concern I have about this approach with respect to
the state provision is this: Under federal
constitutional law, there's a case called Loretto v.
Manhattan Teleprompter, which says that if
legislatively, you create interference with the
landowner's right of possession of property, that is a
per se taking of property within the federal
constitutional provision under the Fifth Amendment.
... And if, legislatively, you do create a per se
taking, the remedy of the landowner is not simply to
have the law invalidated.
Under a case called First English Lutheran Church v.
[County] of Los Angeles, the United States Supreme
Court cleared up a longstanding dispute about what the
landowner's remedy is by saying the landowner's remedy
is compensation for the period that the invalid or
improper law is in place. My concern: the defense
that you would have here, if you could precisely
tailor the legislation to whatever the common law-
right is, you might have a defense, because there's
another body of takings law that says if the right
that's being asserted, to go on the property, is part
of the background principles of real property law -
like this 800-year-old doctrine - then there's never a
taking.
But here, you're repealing all of that law and you're
substituting for it a legislative enactment. I think
there's exposure to inverse condemnation claims for
temporary takings even if you can satisfy yourself
that it's tailored to the common law, which it's not.
I'm not prepared to say that it is.
CHAIR McGUIRE relayed that SB 93 would be set aside, which would
allow Mr. Baird an opportunity to work with Mr. Tillinghast on
the issues raised and the possible amendments suggested.
Number 0741
JIM COLVER suggested defining "developed" such that "we exempted
from adverse possession, under 43 U.S.C.A. 636(d)(1), extending
the exemption to lands which have been logged or including
ancillary logging infrastructure." If those types of lands are
taken off the table, he added, it might clear up some other
concerns without having to amend the whole statute.
CHAIR McGUIRE announced that the hearing on SB 93 would be
recessed for the purpose of hearing two other bills. [The
hearing on SB 93 was recessed until later in the meeting.]
SB 8 - TAMPERING WITH PUBLIC RECORDS
[Contains mention that the provisions of SB 55 have been
incorporated into SB 8.]
Number 0691
CHAIR McGUIRE announced that the next order of business would be
CS FOR SENATE BILL NO. 8(JUD), "An Act relating to tampering
with public records."
Number 0654
RICHARD BENAVIDES, Staff to Senator Bettye Davis, Alaska State
Legislature, presented SB 8 on behalf of the sponsor, Senator
Davis. He said that SB 8 would elevate the crime of tampering
with public records, specifically for five particular sections
of Title 47, from a class A misdemeanor to a Class C felony.
Those five sections are: AS 47.10 - Children in Need of Aid; AS
47.12 - Delinquent Minors; AS 47.17 - Child Protection; AS 47.20
- Services For Developmentally Delayed or Disabled Children; and
AS 47.24 - Protection of Vulnerable Adults. He added that the
provisions of SB 55 have been rolled into SB 8.
Number 0589
REPRESENTATIVE HOLM moved to report CSSB 8(JUD) out of committee
with individual recommendations and the accompanying zero fiscal
notes. There being no objection, CSSB 8(JUD) was reported from
the House Judiciary Standing Committee.
The committee took an at-ease from 6:50 p.m. to 7:00 p.m.
SB 85 - REPEAT SERIOUS SEX OFFENSES
[Contains adoption of HCR 23 for the purpose of changing the
title of SB 85.]
Number 0582
CHAIR McGUIRE announced that the next order of business would be
CS FOR SENATE BILL NO. 85(STA), "An Act relating to sentencing
and to the earning of good time deductions for certain sexual
offenses."
Number 0556
SENATOR HOLLIS FRENCH, Alaska State Legislature, sponsor, said
that SB 85 is designed to do two things. One, it will take
repeat sex offenders, those individuals who've been convicted of
qualifying prior felony sex crimes, and put them into a new
sentencing range - a more severe sentencing range. Two, it will
take away the "good time" [sentence reduction] of those same
individuals, those repeat sex offenders. He remarked that
currently, the law does not account for the type of prior felony
a person is convicted of.
[Tape ends early; no testimony is missing.]
TAPE 03-72, SIDE A
Number 0015
SENATOR FRENCH went on to say that currently, if one is a two-
time felon, and the second felony is a rape conviction, the law
makes no distinction. He offered his belief that a two-time
rapist is not the same as any other two-time felon; he/she needs
to be put in a separate, more stringent category. The
sentencing scheme outlined in SB 85 is intended to address that
concern. He remarked that for the past 26 years, Alaska has
been at the top, nationwide, for reported rapes. Although SB 85
is not the entire answer, it will put hardcore, repeat offenders
away for longer periods of time. In response to a question, he
said that nationwide, about 10-25 percent of convicted sex
offenders will go on to commit and be convicted of another sex
offense within about five years of their first conviction.
REPRESENTATIVE HOLM surmised that SB 85 is addressing the issue
of predators, and opined that there is a difference between a
sex offender and a rapist and that the two are not the same. He
said he would like to have those terms defined a little bit, and
that he wanted to know how many people are rapists and how many
people are just perverts.
CHAIR McGUIRE said she strongly disagrees with Representative
Holm, adding that rapists are predators and are among the worst
of people and it is therefore irrelevant whether the person
being taken advantage of sexually is a woman or a child or a
man.
REPRESENTATIVE HOLM said he just wanted to know what the
difference is between the different classes of sexual predator.
Are they all the same under the law?
SENATOR FRENCH explained that there are two broad categories.
One is sexual assault - known as rape - and the other is sexual
abuse of a minor. The latter often involves the same behavior
as the former but it is committed against a child under the age
of 16. Those two categories are not exactly the same, he noted,
but added that it is so very difficult to differentiate amongst
them that, for purposes of SB 85, "we simply say this."
REPRESENTATIVE HOLM surmised: "Treat them all the same."
Number 0335
SENATOR FRENCH clarified that if someone is a repeat offender,
"we're going to treat you the same and we're going to spank you
hard." He referred to a newspaper clipping, which he relayed
said that a 27-year-old Fairbanks man was convicted on five
counts after molesting two teenage girls last year. The man was
found guilty of fondling his wife's 15-year-old sister and her
16-year-old friend after giving them alcohol. He was convicted
on one count each of first and second degree sexual abuse of a
minor and one count of third degree sexual assault, and is now
facing sentencing on those charges.
SENATOR FRENCH said that if such a situation is a onetime event,
the perpetrator will be sentenced like every other first time
offender. However, if the perpetrator is convicted again of
such crimes, he offered his belief that that perpetrator should
be treated more harshly.
REPRESENTATIVE SAMUELS mentioned that "good time" is a
management tool for the Department of Corrections (DOC). He
asked how many people will be affected by the "good time"
provision of SB 85 and what will happen to the DOC when that
tool is taken away.
SENATOR FRENCH posited that most sex offenders don't need that
tool: "In a disciplined, orderly setting, they seem to be rule
followers; they seem to conform their behavior to the structure
they find themselves in." He acknowledged, however, that there
is a cost aspect to eliminating "good time." He opined that SB
85 will save money in the long run just by keeping perpetrators
of sexual offenses in jail longer, rather than letting them out
sooner and then having to reprocess them into the correctional
system when they are convicted again.
REPRESENTATIVE GARA asked for a comparison between the current
sentencing structure and that proposed by SB 85. He also asked
whether "statutory rape" is included in SB 85, and what the age
difference is that results in a crime being called statutory
rape.
SENATOR FRENCH, with regard to age differences between a victim
and a perpetrator, said that the victim would be either 13, 14,
or 15 years old, with the perpetrator being three years older.
So statutory rape would involve a 16-, 17-, or 18-year-old
having consensual sex with someone three years younger, and
he/she would be guilty of committing sexual abuse of a minor in
the third degree, which is a class C felony. He noted that if
someone is convicted of statutory rape, by the time he/she gets
out of prison, it is unlikely that he/she will still be in the
same age category whereby a second conviction for statutory rape
is possible. With regard to the differences between the current
sentencing structure and that proposed by SB 85, he relayed that
a handout detailing those differences is included in members'
packets; the handout is titled "Sentencing Guidelines for Repeat
Sexual Offenders."
REPRESENTATIVE HOLM asked whether the offenses covered under SB
85 include all the offenses in AS 11.41.410 - AS 11.41.470.
SENATOR FRENCH said yes. He added that "sexual felony" is
defined on page 8 [lines 1-6] of SB 85, and is meant to cover
"just about every sexual felony in our code."
REPRESENTATIVE GARA, after reviewing the aforementioned handout,
remarked that SB 85 seems to add five years.
CHAIR McGUIRE, after ascertaining that no one wished to testify
on SB 85, closed public testimony.
Number 0914
REPRESENTATIVE SAMUELS made a motion to adopt Amendment 1,
labeled 23-LS0512\U.2, Luckhaupt, 5/18/03, which read:
Page 1, line 1, following "Act":
Insert "relating to the factors that may be
considered in making a crime victim compensation
award;"
Page 8, following line 6:
Insert a new bill section to read:
"* Sec. 10. AS 18.67.080(c) is amended to read:
(c) In determining whether to make an order
under this section, the board shall consider all
circumstances determined to be relevant, including
provocation, consent, or any other behavior of the
victim that directly or indirectly contributed to the
victim's injury or death, the prior case or social
history, if any, of the victim, the victim's need for
financial aid, and any other relevant matters. In
applying this subsection,
(1) the board may not deny an order based
on the factors in this subsection, unless those
factors relate significantly to the occurrence that
caused the victimization and are of such a nature and
quality that a reasonable or prudent person would know
that the factors or actions could lead to the crime
and the victimization;
(2) with regard to circumstances in which
the victim consented to, provoked, or incited the
criminal act, the board may consider those
circumstances only if the board finds that it is more
probable than not that those circumstances occurred
and were the cause of the crime and the victimization;
(3) the board may deny an order based on
the victim's involvement with illegal drugs, only if
(A) the victim was involved in the
manufacture or delivery of a controlled substance at
the time of the crime or the crime and victimization
was a direct result of the prior manufacture or
delivery of a controlled substance; the evidence of
this manufacture or delivery must be corroborated by
law enforcement or other credible sources; and
(B) the evidence shows a direct correlation
linking the illegal activity and the crime and
victimization; or
(4) if a claim is based on a crime
involving domestic violence or on a crime of sexual
abuse of a minor or sexual assault and the offender is
(A) convicted of one of those crimes,
notwithstanding (1) - (3) of this subsection, the
board may not deny an order based on considerations of
provocation, the use of alcohol or drugs by the
victim, or the prior social history of the victim; or
(B) not convicted of one of those crimes,
the board may not deny an order based on the
involvement or behavior of the victim."
Renumber the following bill sections accordingly.
Number 0920
REPRESENTATIVE GARA objected to ask what Amendment 1 does.
REPRESENTATIVE SAMUELS said that Amendment 1 "goes into the
criteria that can be used by the [Violent Crimes] Compensation
Board, and what it does is it makes sure that they cannot deny
for alcohol use, [or] drug use unless drug use was part of the
crime itself."
CHAIR McGUIRE mentioned that the language in Amendment 1 was
suggested by Senator Gretchen Guess.
REPRESENTATIVE GARA withdrew his objection.
Number 0959
CHAIR McGUIRE asked whether there were further objections to
Amendment 1. There being none, Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG noted that with the adoption of
Amendment 1, a concurrent resolution is now necessary in order
to change the title of SB 85.
Number 1010
REPRESENTATIVE SAMUELS moved to report CSSB 85(STA), as amended,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, HCS CSSB
85(JUD) was reported from the House Judiciary Standing
Committee.
Number 1024
CHAIR McGUIRE announced that the committee now had before it for
consideration the proposed House Concurrent Resolution, version
23-LS1164\A, Luckhaupt, 5/17/03.
Number 1039
REPRESENTATIVE SAMUELS moved to adopt and report the proposed
House Concurrent Resolution, version 23-LS1164\A, Luckhaupt,
5/17/03, out of committee with individual recommendations.
There being no objection, the House Concurrent Resolution [which
later became HCR 23] was adopted and reported from the House
Judiciary Standing Committee.
[HCS CSSB 85(JUD) was reported from committee.]
The committee took an at-ease from 7:17 p.m. to 7:22 p.m.
SB 93 - ADVERSE POSSESSION
Number 1058
CHAIR McGUIRE announced that the committee would resume the
hearing on CS FOR SENATE BILL NO. 93(JUD) am, "An Act relating
to limitations on actions to quiet title to, eject a person
from, or recover real property or the possession of it; relating
to adverse possession; and providing for an effective date."
Number 1078
JONATHAN TILLINGHAST, Lobbyist for Sealaska Corporation
("Sealaska"), said that Sealaska worked on this bill with
Chugach Electric Association, Inc., and an agreement was reached
to insert the language found on page 2, lines 17-19. This
language ensures a public utility's right to continue to acquire
easements by adverse possession. In return, Chugach Electric
Association, Inc., agreed that it would support or at least not
oppose SB 85.
MR. TILLINGHAST remarked that the number of Alaska Supreme Court
cases involving squatters is not indicative of how many
squatters there actually are in the state, adding that Sealaska
has had to deal with squatters. He said that a case in Cordova
was typical:
It was a fellow who had squatted on this property
undetected for nine years. We caught him within a
year. He didn't take us to court; we had to take him
to court and spend quite a bit of money on [attorney]
fees to get him off the property.
MR. TILLINGHAST mentioned that the issue of whether repealing
the doctrine of adverse possession is unconstitutional has not
been addressed. He acknowledged that SB 85 makes no provision
for new conveyances by oral gifts, but pointed out that it does
have a "grandfather clause." Therefore, although oral gifts of
property will no longer be honored, if somebody had made an oral
gift more than 10 years ago, it wouldn't be affected by the
bill. He remarked that SB 85 was drafted to preclude oral gifts
of property because it is not reasonable, in this day and age,
for people to think that they can have real property conveyed to
them by a mere oral statement; in fact, doing so would now be a
violation of the "statute of frauds."
Number 1317
MR. TILLINGHAST relayed that in the case involving an oral gift
of property from a grandmother to a granddaughter, the court had
to invent the boundaries of the property, and had to do so via a
two-page description. He observed that one of the virtues of
limiting the doctrine of adverse possession is that it will cut
down on litigation because one can rely on the paper record. He
offered the following quote from what he called a 1996 "Land and
Water Review" article:
This (indisc.) has endorsed the burial of adverse
possession and prescription through legislation; these
two ideas are dusty, obscure relics of the past, and
finish one bullet short in a showdown with modern
public policy.
MR. TILLINGHAST offered the following quote from what he called
a 1994 "Cornell Law Review":
Adverse possession of wild lands should be consigned
to the dustbin of legal history as an idea whose time
has passed.
MR. TILLINGHAST said that several states have abolished
squatters rights by simply saying that one cannot bring an
adverse possession claim unless one pays the real property taxes
on the property. He called this a brilliant suggestion because
it announces to the whole world that someone thinks he/she owns
the property, and this puts the actual owner on notice. Such a
solution wouldn't work in Alaska, however, because much of the
remote land in Alaska is located in unorganized boroughs and is
therefore not taxed. He relayed that the Florida supreme court
has said that if "it" is not conditioned upon the person paying
taxes, the actual owner is not given enough notice, and
therefore adverse possession is unconstitutional.
MR. TILLINGHAST, on the issue of "driveway situations," opined
that language on page 2, lines 9-12, would "cover the neighbor
dispute where neighbor A is using some of neighbor B's
property."
Number 1457
RONALD L. BAIRD, Attorney at Law, noted that the quote that
speaks to wild lands encompasses the alternative approach that
he suggested earlier, adding that that commentator does not
propose repeal of adverse possession but instead proposes
creating an exception to it to deal with wild lands. He opined
that doing so is a sensible approach.
REPRESENTATIVE HOLM asked Mr. Baird whether he was familiar with
"Duncan's camp against Haines Borough," which he called a
"traditional possession case."
MR. BAIRD said he was not.
Number 1520
JIM COLVER called SB 93 a very important special interest bill,
which seeks to trash 800 years of common law just because
Sealaska is worried about trespassers on its land. He relayed
that in his profession as a surveyor, he runs across "these
claims" all the time: driveways that aren't in the right place,
and people building over the property line. He surmised that in
the Fairbanks area there are a lot of old gold claims and
homesteads and patents where people go across other people's
land to get to their cabins. He said that as currently written,
there is no sufficient clause in SB 93 to cover private roads
and private driveways; the bill only covers "adjoiners," and
would not apply in situations where one must travel over several
parcels of land owned by separate people.
MR. COLVER said that at a minimum, the committee needs to amend
SB 93 such that it would cover private roads, trails, and
driveways. He added that such language would look similar to
that which pertains to public roads. He said it is really
important for people to retain access to their fishing holes, to
their cabins, and to their homes. Currently, one can go to
court and prove open and notorious use, but under SB 93, "we're
doing away with that," he added. He relayed that the Matanuska-
Susitna borough attorney was concerned about "the upgrading of
the title in the utility provision from prescriptive right to
(indisc.) easement, and was concerned that the municipalities
would need to be exempted from that." He surmised that perhaps
that is the intent, but suggested that some specific language
ought to be added to clarify that point.
MR. COLVER said he agrees with Mr. Baird's testimony. He
elaborated:
The way I see this, [Alaska Native Claims Settlement
Act (ANCSA)] already exempts Native corporations from
adverse possessions in lands that aren't developed,
and lands that are developed don't include surveying,
roads, utility construction. A simpler fix, without
having to monkey with the whole statute, I believe,
would be to define "developed" in our statute as it
pertains to [43 U.S.C.A.] 636(d)(1) and ANCSA, and
deal with what Sealaska's issues are (indisc.) what
status that land is in - has it been logged, [are]
there roads on it.
Number 1647
That way, we still preserve the doctrine that is used
a lot. And I'll give you one instance. My brother
John is an attorney and I talked with him about this
bill, and he said he had a case in Chitna where the
Kennicott Corporation granted lands to their
employees. And deeds were lost or the court house
burned down, the family had [known], they'd seen the
deeds, but in order to perfect their title and the
claim, protect it from the successor to the Kennicott
Corporation, they had to go to court and prove adverse
possession.
MR. COLVER concluded:
So this is used day in, day out and will ... need to
be used for defective titles without any color of
title, no deed, document, that asserts any form of
ownership. And I don't know why we need to rush on
this and wipe out 800 years of legal doctrine to solve
a trespass problem. ... I would think that we'd be
able to craft language to narrowly deal with
Sealaska's concern, and retain the access that we've
had to take title and private roads. You've given it
to utilities - in this bill - we've given the public
roads prescriptive rights, but we've left out those
people with driveways and private roads. And at a
minimum we need to include them.
REPRESENTATIVE OGG turned attention to Section 4, subsection
(d), and said it appears that if the public makes use of
someone's private land to get down to the beach for 10 years,
the landowner would lose his/her land to the state. He said
"that's" offensive to him.
MR. COLVER said that if the landowner blocks off the trail and
interrupts its use, the time stops.
REPRESENTATIVE OGG noted that what's being portrayed to the
committee are situations wherein the land is so remote that the
landowner - for example, Sealaska Corporation - does not know
that its land is being used and does not want to have the
responsibility of monitoring its land. Currently, if 10 years
go by, then adverse possession occurs and the property, in the
example of the public accessing the beach, is given to the state
or municipality as a public trail.
MR. COLVER acknowledged that currently, 10 years of open and
notorious use applies to all property, private or public.
REPRESENTATIVE OGG said he did not think that's right.
Number 1804
MR. COLVER mentioned that surveyors are upset about SB 93.
REPRESENTATIVE GRUENBERG turned attention to the suggested
language change offered in writing by the Matanuska-Susitna
borough attorney. The change, he surmised, would be to add "any
municipality," after "against" on page 2. line 13. He asked
whether such language is already in statute elsewhere.
MR. TILLINGHAST suggested that that concern has been addressed
via Senator Wagoner's letter to Commissioner Irwin. He added
that the bill is not intended to give utilities acquisition
authority over municipal, state, or federal land. He opined
that the sponsor's letter was sufficient and an actual amendment
would not be needed.
REPRESENTATIVE GRUENBERG pointed out that Alaska's superior
courts aren't necessarily going to see that letter. Therefore,
if the committee really wants to be sure that the sponsor's
intent is carried out, there should be language in statute, he
added.
MR. BAIRD said that originally, the state and utilities were
addressed in the same section the bill, but a belief arose that
it would be more convenient to have them addressed in separate
sections. He said that he'd proposed a suggestion to add
"private land" to subsection (c), located in Section 4 of the
bill. Legislative Legal and Research Services, however, opted
to use the term "real property". He said he is not sure why
Legislative Legal and Research Services want to use "real
property", but suggested that this is what has lead to the
concern regarding municipalities. He relayed that his client,
Chugach Electric Association, Inc., is satisfied with the
language as is, but does not assert that it can, under existing
law, acquire a right against the government or private entities,
and acknowledges that it has no greater right than a private
party.
REPRESENTATIVE GRUENBERG read portions of the borough attorney's
written testimony, and posited that perhaps the suggested
language ought to go in Section 4, rather than Section 3.
Referring to the written testimony, he surmised that it meant
that "you couldn't get title, but you could get an easement by
adverse possession."
Number 2057
MR. BAIRD said he is wondering why the United States is referred
to at all in SB 93, since there is no way that the state can say
anything about how the federal government is going to be
divested of its lands. He suggested that the language in
subsection (d) of Section 4 would make it an exception to
Section 2 of the bill, adding that under existing law, private
utilities cannot acquire interests by prescription, which is a
sub-doctrine of adverse possession, from public entities. He
said that the problem with what has been proposed by the borough
attorney is that "this" section deals with public utilities,
which includes both his client, Chugach Electric Association,
Inc., and municipalities to the extent they are providing public
utility services.
REPRESENTATIVE GRUENBERG surmised, then, that "it would be
meaningless because obviously a municipality can't get adverse
possession against itself."
MR. BAIRD added, "Or the state."
REPRESENTATIVE GRUENBERG offered that perhaps the language
suggested by the borough attorney ought to go on line 19 at the
end of subsection (c).
MR. TILLINGHAST relayed that Legislative Legal and Research
Services has indicated that the existing "immunity law" for
municipalities only protects them from being divested of title;
it does not protect municipalities from being subject to an
easement acquired by adverse possession from another
governmental entity or a public utility. If such is actually
true, he remarked, then the borough attorney's suggestion would
expand the municipality's rights and shield it against a utility
acquiring a power line easement over municipal property, and
would therefore be a change in existing law.
REPRESENTATIVE GRUENBERG said he thought that under Title 9,
"you can't get adverse possession."
MR. TILLINGHAST offered that the operative language is in Title
29.
REPRESENTATIVE GRUENBERG surmised, then, that as a matter of
policy, no one should be able to get a prescriptive easement
against a municipality. He mentioned that he'd like to insert
language to protect municipalities, adding that it would be good
public policy.
Number 2248
MR. TILLINGHAST opined that the theory behind protecting a
public utility's right to acquire prescriptive rights for power
lines is that power lines "sort of go where they go," and they
may very well need to go over municipal land.
REPRESENTATIVE GRUENBERG said he is not saying they shouldn't;
rather, the question is, do they get a prescriptive easement,
which is an easement in perpetuity.
MR. TILLINGHAST surmised that that argument raises the
philosophical question of, should yet another exception be
carved out wherein government gets preferential treatment over
the private sector. He added that adverse possession already
prefers the government over private enterprise.
CHAIR McGUIRE asked Mr. Tillinghast whether he would be willing
to allow "a carve out for prescriptive easements," for example,
in situations where a family has a cabin and has been using a
particular path over another person's property for more than 10
years because there is no other way to get out to the roadway or
to the lake.
REPRESENTATIVE GRUENBERG remarked, "easement of necessity
(indisc.) or by implication."
MR. TILLINGHAST pointed out that in that example, if the family
has used the path for over 10 years, then SB 93 would not affect
that family because it would be "grandfathered."
CHAIR McGUIRE clarified that she is talking about future such
situations.
MR. TILLINGHAST said that under SB 93, for situations in the
future, his client would prefer that the family pay for "it,"
either by negotiating the purchase of an easement or, if his
client refuses to do that, by bringing an action claiming the
right to an easement by necessity. He added that in the latter
case, the court would fix fair market value to the property.
The bottom line, he remarked, is whether the family has to take
his client to court, which the family would have to do anyway
for adverse possession. He stated, "They'll have to pay us the
fair market value of that easement and we'd prefer, in the
future, that that's the way the world worked."
Number 2346
MR. BAIRD opined that the principal of easement by necessity
would not be affected by SB 93 because it is a separate body of
law that arises from applied rights under a pattern of
"conveyancing," so that if one conveys a series of separate
parcels in such a way as to leave somebody landlocked, the law
applies, in the conveyance itself, the preservation of an
easement. He offered his belief that in such a situation,
existing law would protect the family in Chair McGuire's
example.
CHAIR McGUIRE indicated agreement.
TAPE 03-72, SIDE B
Number 2362
REPRESENTATIVE ANDERSON moved to report CSSB 93(JUD) am out of
committee with individual recommendations and the accompanying
zero fiscal note.
Number 2354
REPRESENTATIVE OGG objected.
Number 2349
A roll call vote was taken. Representatives Holm, Samuels,
Gara, Anderson, and McGuire voted in favor of reporting the bill
from committee. Representatives Ogg and Gruenberg voted against
it. Therefore, CSSB 93(JUD) am was reported out of the House
Judiciary Standing Committee by a vote of 5-2.
ADJOURNMENT
Number 2330
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 7:55 p.m.