ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                        January 30, 2008                                                                                        
                           1:38 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Charlie Huggins, Vice Chair                                                                                             
Senator Lesil McGuire                                                                                                           
Senator Bill Wielechowski                                                                                                       
Senator Gene Therriault                                                                                                         
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Hollis French, Chair                                                                                                    
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
CS FOR HOUSE BILL NO. 7(FIN) am                                                                                                 
"An Act relating to false caller identification."                                                                               
     MOVED CSHB 7(FIN) am OUT OF COMMITTEE                                                                                      
                                                                                                                                
SENATE BILL NO. 247                                                                                                             
"An Act relating to missing persons and unidentified human                                                                      
remains."                                                                                                                       
     HEARD AND HELD                                                                                                             
                                                                                                                                
SENATE BILL NO. 226                                                                                                             
"An Act relating to litigation brought by a vexatious litigant;                                                                 
amending Rules 3, 4, 12, and 41, Alaska Rules of Civil                                                                          
Procedure; and providing for an effective date."                                                                                
     HEARD AND HELD                                                                                                             
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB   7                                                                                                                  
SHORT TITLE: FALSE CALLER IDENTIFICATION                                                                                        
SPONSOR(s): REPRESENTATIVE(s) LYNN, GARDNER                                                                                     
                                                                                                                                
01/16/07       (H)       PREFILE RELEASED 1/5/07                                                                                
01/16/07       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/16/07       (H)       JUD                                                                                                    
01/22/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
01/22/07       (H)       Scheduled But Not Heard                                                                                
01/24/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
01/24/07       (H)       Heard & Held                                                                                           
01/24/07       (H)       MINUTE(JUD)                                                                                            
01/31/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
01/31/07       (H)       Heard & Held                                                                                           
01/31/07       (H)       MINUTE(JUD)                                                                                            
02/01/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/01/07       (H)       Heard & Held                                                                                           
02/01/07       (H)       MINUTE(JUD)                                                                                            
02/05/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/05/07       (H)       Heard & Held                                                                                           
02/05/07       (H)       MINUTE(JUD)                                                                                            
02/08/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/08/07       (H)       Moved CSHB   7(JUD) Out of Committee                                                                   
02/08/07       (H)       MINUTE(JUD)                                                                                            
02/12/07       (H)       JUD RPT CS(JUD) 2DP 4NR                                                                                
02/12/07       (H)       DP: GRUENBERG, LYNN                                                                                    
02/12/07       (H)       NR: COGHILL, SAMUELS, HOLMES, RAMRAS                                                                   
02/12/07       (H)       FIN REFERRAL ADDED AFTER JUD                                                                           
02/21/07       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
02/21/07       (H)       Heard & Held                                                                                           
02/21/07       (H)       MINUTE(FIN)                                                                                            
03/05/07       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
03/05/07       (H)       Moved CSHB   7(FIN) Out of Committee                                                                   
03/05/07       (H)       MINUTE(FIN)                                                                                            
03/07/07       (H)       FIN RPT CS(FIN) 2DP 7NR                                                                                
03/07/07       (H)       DP: CRAWFORD, MEYER                                                                                    
03/07/07       (H)       NR: GARA, STOLTZE, JOULE, NELSON,                                                                      
                         THOMAS, HAWKER, CHENAULT                                                                               
03/16/07       (H)       TRANSMITTED TO (S)                                                                                     
03/16/07       (H)       VERSION: CSHB 7(FIN) AM                                                                                
03/19/07       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/19/07       (S)       JUD, FIN                                                                                               
01/23/08       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
01/23/08       (S)       -- MEETING CANCELED --                                                                                 
01/25/08       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
01/25/08       (S)       Heard & Held                                                                                           
01/25/08       (S)       MINUTE(JUD)                                                                                            
                                                                                                                                
BILL: SB 247                                                                                                                  
SHORT TITLE: MISSING PERSONS                                                                                                    
SPONSOR(s): SENATOR(s) GREEN                                                                                                    
                                                                                                                                
01/23/08       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/23/08       (S)       JUD, FIN                                                                                               
01/30/08       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
                                                                                                                                
BILL: SB 226                                                                                                                  
SHORT TITLE: VEXATIOUS LITIGANTS                                                                                                
SPONSOR(s): JUDICIARY                                                                                                           
                                                                                                                                
01/16/08       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/16/08       (S)       JUD, FIN                                                                                               
01/30/08       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
DIRK MOFFET, Staff                                                                                                              
  to Representative Bob Lynn                                                                                                    
Alaska State Capitol                                                                                                            
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Answered questions related to HB 7.                                                                      
                                                                                                                                
DARWIN PETERSON, Staff                                                                                                          
  to the Senate Finance Committee                                                                                               
Alaska State Capitol                                                                                                            
Juneau, AK                                                                                                                      
POSITION STATEMENT: Introduced SB 247 on behalf of the sponsor.                                                               
                                                                                                                                
KATHRYN MONFREDA, Chief                                                                                                         
Criminal Records and Identification Bureau                                                                                      
Division of Statewide Services                                                                                                  
Department of Public Safety                                                                                                     
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Answered questions related to SB 247.                                                                    
                                                                                                                                
RODNEY DIAL, Lieutenant                                                                                                         
Alaska State Troopers (AST)                                                                                                     
Department of Public Safety (DPS)                                                                                               
Ketchikan, AK                                                                                                                   
POSITION STATEMENT:  Stated general support for SB 247 and                                                                    
offered suggestions.                                                                                                            
                                                                                                                                
CINDY SMITH, Aide                                                                                                               
  to the Senate Judiciary Committee                                                                                             
Alaska State Capitol                                                                                                            
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Provided information on the fiscal note for                                                              
HB 7 and introduced SB 226 on behalf of the sponsor.                                                                            
                                                                                                                                
MIKE FORD, Legislative Liaison                                                                                                  
Civil Division                                                                                                                  
Department of Law (DOL)                                                                                                         
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Responded to questions related to SB 226.                                                                
                                                                                                                                
PETER MAASSEN, Attorney                                                                                                         
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Stated support for SB 226.                                                                               
                                                                                                                                
JED WHITTAKER, private citizen                                                                                                  
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Spoke in opposition to SB 226.                                                                           
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
VICE-CHAIR   HUGGINS  called   the   Senate  Judiciary   Standing                                                               
Committee meeting to order at 1:38:52  PM. Present at the call to                                                             
order  were   Senators  Wielechowski,  Therriault   and  Huggins.                                                               
Senator McGuire joined the meeting shortly.                                                                                     
                                                                                                                                
          CSHB  7(FIN) am-FALSE CALLER IDENTIFICATION                                                                       
                                                                                                                              
1:39:20 PM                                                                                                                    
VICE-CHAIR HUGGINS  announced the consideration of  HB 7. [Before                                                               
the committee was CSHB 7(FIN) am.]                                                                                              
                                                                                                                                
DIRK MOFFET, Staff  to Representative Bob Lynn, sponsor  of HB 7,                                                               
reminded the  committee that during the  previous hearing Senator                                                               
Therriault identified  an error in  the fiscal notes.  The intent                                                               
is  that displaying  false caller  ID  information is  a class  A                                                               
misdemeanor.                                                                                                                    
                                                                                                                                
1:40:43 PM                                                                                                                    
SENATOR McGUIRE joined the meeting.                                                                                             
                                                                                                                                
SENATOR THERRIAULT asked  if a revised fiscal note  would also be                                                               
forthcoming from the Department of Law (DOL)                                                                                    
                                                                                                                                
CINDY SMITH,  Aide to the  Senate Judiciary  Committee, explained                                                               
that the revised DOL fiscal note  will be available when the bill                                                               
is heard in the Finance Committee.                                                                                              
                                                                                                                                
SENATOR THERRIAULT said okay.                                                                                                   
                                                                                                                                
VICE-CHAIR HUGGINS found no further  discussion and asked for the                                                               
will of the committee.                                                                                                          
                                                                                                                                
1:41:41 PM                                                                                                                    
SENATOR  WIELECHOWSKI motioned  to report  CSHB 7  from committee                                                               
with individual recommendations and attached fiscal note(s).                                                                    
VICE-CHAIR  announced  that  without objection,  CSHB  7(FIN)  am                                                               
moves from committee.                                                                                                           
                                                                                                                                
                     SB 247-MISSING PERSONS                                                                                 
                                                                                                                              
1:42:33 PM                                                                                                                    
VICE-CHAIR HUGGINS announced the consideration of SB 247.                                                                       
                                                                                                                                
DARWIN  PETERSON,   Staff  to   the  Senate   Finance  Committee,                                                               
explained that  Senator Green,  sponsor of SB  247, asked  him to                                                               
introduce the  bill. He was a  member of her staff  when the bill                                                               
was drafted. The  language comes from model  legislation that was                                                               
drafted  by  the  U.S.  Department  of  Justice  in  response  to                                                               
President  Bush's  DNA   initiative.  Law  enforcement  agencies,                                                               
medical  examiners, forensic  scientists, victims'  advocates and                                                               
policy makers joined forces to look  at ways to fully utilize DNA                                                               
technology  to solve  crimes and  identify missing  persons. They                                                               
recommend   that  states   adopt  some   version  of   the  model                                                               
legislation.                                                                                                                    
                                                                                                                                
1:43:37 PM                                                                                                                    
MR. PETERSON said  that Senator Green was made aware  of the need                                                               
for  this  legislation  by  a  constituent  whose  daughter  went                                                               
missing for  19 months. That  mother's advocacy on behalf  of all                                                               
missing persons  is why  Senator Green  decided to  introduce the                                                               
bill.                                                                                                                           
                                                                                                                                
MR. PETERSON  emphasized that Senator Green  believes that Alaska                                                               
law enforcement  is doing a good  job with the resources  it has.                                                               
But the  Department of Public  Safety (DPS) admits that  there is                                                               
no consistent  protocol for  the content,  timing, and  method of                                                               
submission  of missing  person  reports  amongst law  enforcement                                                               
agencies. The sponsor believes  that increasing cooperation among                                                               
agencies will  improve the  ability to  locate and  safely return                                                               
missing persons.                                                                                                                
                                                                                                                                
MR. PETERSON  explained that  SB 247  will: prohibit  disposal of                                                               
unidentified  human  remains  before DNA  samples  are  archived;                                                               
prohibit  law  enforcement agencies  from  refusing  to accept  a                                                               
missing  person  report;  provide  a detailed  list  of  specific                                                               
information that law enforcement is  to gather and record about a                                                               
missing person; allow  law enforcement to obtain  and forward for                                                               
analysis a  DNA sample from  the family  of a missing  person who                                                               
has been missing for more than 30 days.                                                                                         
                                                                                                                                
VICE-CHAIR HUGGINS asked where that provision is in the bill.                                                                   
                                                                                                                                
MR. PETERSON directed  attention to page 4.  He paraphrased lines                                                               
6-11 and  said that DNA would  not be used for  any purpose other                                                               
than to help locate the missing person.                                                                                         
                                                                                                                                
VICE-CHAIR HUGGINS asked  if collecting the DNA sample  is at the                                                               
discretion of the family member and not mandatory.                                                                              
                                                                                                                                
1:47:31 PM                                                                                                                    
MR.  PETERSON replied  he would  need to  check with  legislative                                                               
legal because  he doesn't see where  is says that. It  might be a                                                               
worthwhile amendment, he added.                                                                                                 
                                                                                                                                
SENATOR WIELECHOWSKI asked how "family member" is defined.                                                                      
                                                                                                                                
MR. PETERSON  said he would check  with the drafter. If  it isn't                                                               
defined, the sponsor will propose definition language.                                                                          
                                                                                                                                
1:48:25 PM                                                                                                                    
MR.  PETERSON  said  that  SB 247  requires  all  missing  person                                                               
reports to be entered into  the National Crime Information Center                                                               
Missing  Person File,  Unidentified  Person File,  and the  state                                                               
crime  information system.  If a  missing person  is deemed  high                                                               
risk, the bill  provides a mechanism for law  enforcement to take                                                               
immediate action. Improving the process is a worthwhile effort.                                                                 
                                                                                                                                
1:49:19 PM                                                                                                                    
SENATOR   WIELECHOWSKI   observed   that  page   2   contains   a                                                               
comprehensive list  of information that a  law enforcement agency                                                               
is  mandated to  gather when  it accepts  a report  of a  missing                                                               
person. He questioned  how far reaching this mandate  will be and                                                               
what kind of onus it will place on law enforcement agencies.                                                                    
                                                                                                                                
MR. PETERSON  acknowledged that DPS  has expressed  concern about                                                               
that. And law  enforcement has said that it gathers  most of this                                                               
information  already.  "If  we're  going too  far  and  violating                                                               
peoples' rights to  privacy then that definitely  should be taken                                                               
into consideration," he said.                                                                                                   
                                                                                                                                
1:51:16 PM                                                                                                                    
KATHRYN  MONFREDA,  Chief,  Criminal Records  and  Identification                                                               
Bureau,  Division of  Statewide  Services,  Department of  Public                                                               
Safety, confirmed that most of  the information that SB 247 calls                                                               
for is  already captured by  state or National  Crime Information                                                               
Center (NCIC) requirements. She isn't  sure what would happen if,                                                               
for some reason, the information isn't available.                                                                               
                                                                                                                                
VICE-CHAIR HUGGINS asked if she  is concerned about the extensive                                                               
list of requirements.                                                                                                           
                                                                                                                                
MS. MONFREDA said  not particularly, but someone  from the Alaska                                                               
State Troopers might be better able to speak to that.                                                                           
                                                                                                                                
SENATOR  McGUIRE referred  to page  2, line  27, and  opined that                                                               
asking for  the name and  location of a missing  person's dentist                                                               
and primary  care physician that  is probably a  HIPPA violation.                                                               
She said  she'd work on  language to accommodate  law enforcement                                                               
making  a reasonable  effort to  obtain  the information  without                                                               
violating privacy laws.                                                                                                         
                                                                                                                                
1:54:39 PM                                                                                                                    
VICE-CHAIR HUGGINS  referred to the list  on page 2 and  said his                                                               
assumption is  that the people who  work these cases have  a more                                                               
extensive list than this.                                                                                                       
                                                                                                                                
MS. MONFREDA  said that's  probably true.  She imagines  that the                                                               
person who reports  that a loved-one is missing  usually wants to                                                               
provide as much information as possible.                                                                                        
                                                                                                                                
1:55:16 PM                                                                                                                    
SENATOR  THERRIAULT questioned  whether  there would  be a  HIPPA                                                               
violation if he, for example,  reports that his mother is missing                                                               
and he tells the name of her doctor.                                                                                            
                                                                                                                                
SENATOR McGUIRE  replied that  wouldn't be  a violation,  but the                                                               
confirmation and release  of the actual medical  records would be                                                               
a violation.  A physician isn't  able to confirm or  deny without                                                               
the patient's express consent.                                                                                                  
                                                                                                                                
1:56:47 PM                                                                                                                    
SENATOR  WIELECHOWSKI expressed  some concern  about privacy  and                                                               
asked if the data is kept confidential.                                                                                         
                                                                                                                                
MR. PETERSON  deferred the question  to Ms.  Monfreda. Lieutenant                                                               
Dial could answer many of these questions, he added.                                                                            
                                                                                                                                
1:57:40 PM                                                                                                                    
SENATOR THERRIAULT  referred to page  2, line 16,  and questioned                                                               
why credit card  numbers are required because that  isn't part of                                                               
the model act.                                                                                                                  
                                                                                                                                
MR.  PETERSON  said  the  drafter took  poetic  license.  If  the                                                               
committee  disagrees, the  sponsor  wouldn't  object to  removing                                                               
reference to credit card numbers.                                                                                               
                                                                                                                                
SENATOR  THERRIAULT  said  he appreciates  that  law  enforcement                                                               
tracks  people  with  credit  card numbers.  He  pointed  it  out                                                               
because it's beyond the model, but  if the bill moves outside the                                                               
model, it is a consideration.                                                                                                   
                                                                                                                                
SENATOR  THERRIAULT referred  to page  1, lines  9-10, and  asked                                                               
what happens  if his  cousin, for example,  has gone  missing and                                                               
there's reason  to believe  that he's  outside the  local trooper                                                               
detachment in  Fairbanks. Could the troopers  in Fairbanks refuse                                                               
to  take  the  report  if  there's  reason  to  believe  he's  in                                                               
Anchorage?                                                                                                                      
                                                                                                                                
1:59:47 PM                                                                                                                    
MR. PETERSON  said his  understanding is  that the  Fairbanks law                                                               
enforcement agency  would be  required to  accept the  report. If                                                               
there's reason to believe that  the missing person is outside the                                                               
jurisdiction, the  report would be  entered into the  state crime                                                               
system.  If you  have a  compelling reason  to believe  that your                                                               
cousin was  in Anchorage, the  Anchorage police  department would                                                               
accept the report from you, he said.                                                                                            
                                                                                                                                
SENATOR  THERRIAULT asked  if the  missing  person has  to be  an                                                               
Alaska citizen.                                                                                                                 
                                                                                                                                
MR. PETERSON replied he understands that is not a requirement.                                                                  
                                                                                                                                
SENATOR THERRIAULT  noted that page  3, line 16, talks  about the                                                               
date  of last  contact  and he  asked if  more  details might  be                                                               
helpful.                                                                                                                        
                                                                                                                                
SENATOR WIELECHOWSKI  asked how  many missing person  reports the                                                               
police receive. He'd like their  perspective on whether this will                                                               
create an undue burden.                                                                                                         
                                                                                                                                
MR. PETERSON said 1,500 reports are taken each year.                                                                            
                                                                                                                                
SENATOR WIELECHOWSKI  asked how many  reports are refused  and if                                                               
there's a policy to wait 24 hours before taking a report.                                                                       
                                                                                                                                
MR. PETERSON replied there isn't a  policy per se. He deferred to                                                               
Lieutenant Dial to provide specifics.                                                                                           
                                                                                                                                
2:03:20 PM                                                                                                                    
SENATOR THERRIAULT referred to page 4,  line 9, and asked how the                                                               
DNA sample would be handled and ultimately disposed.                                                                            
                                                                                                                                
MR.  PETERSON offered  to  work with  staff  to develop  language                                                               
related  to disposing  of  the  DNA once  the  missing person  is                                                               
located. That should be included, he added.                                                                                     
                                                                                                                                
SENATOR  THERRIAULT  noted that  one  of  the determinations  for                                                               
identifying a  high risk  missing person is  that they  have been                                                               
missing for  more than 30 days.  That seems like a  long time, he                                                               
said.                                                                                                                           
                                                                                                                                
MR. PETERSON  said that is  just one of  the factors, but  if the                                                               
committee  believes  that should  be  changed,  the sponsor  will                                                               
entertain the idea.                                                                                                             
                                                                                                                                
2:05:44 PM                                                                                                                    
SENATOR THERRIAULT referred  to page 6, line  13, that encourages                                                               
law  enforcement  to  establish   written  protocols.  He  asked,                                                               
"Wouldn't we require them to actually take that step?"                                                                          
                                                                                                                                
MR. PETERSON agreed  the language could be changed  to say "shall                                                               
establish written  protocols." DPS  acknowledges that  it doesn't                                                               
have written protocols that are this specific, he said.                                                                         
                                                                                                                                
2:07:08 PM                                                                                                                    
SENATOR  WIELECHOWSKI   referred  to  page  6,   lines  6-7,  and                                                               
commented  that  this  puts  the state  potentially  at  risk  of                                                               
lawsuit if  the notice  isn't done and  something happens  to the                                                               
missing person.                                                                                                                 
                                                                                                                                
SENATOR THERRIAULT referred  to page 6 and  asked Lieutenant Dial                                                               
if  he  thinks  there  would  be a  problem  if  law  enforcement                                                               
agencies  were  required  rather  than  encouraged  to  establish                                                               
written protocols.                                                                                                              
                                                                                                                                
RODNEY DIAL, Lieutenant, Alaska  State Troopers (AST), Department                                                               
of  Public  Safety (DPS),  stated  general  support for  SB  247.                                                               
However, he  said, some of  the requirements are  problematic. He                                                               
expressed a preference for the  phrase "may do" versus "shall do"                                                               
and  said there  are also  some liability  concerns. Most  of the                                                               
time the  25 requirements  are done  anyway. This  can be  a good                                                               
template and still  give discretion to the  individual agency and                                                               
officer, he said.                                                                                                               
                                                                                                                                
2:09:21 PM                                                                                                                    
VICE-CHAIR HUGGINS agreed to consider the point.                                                                                
                                                                                                                                
SENATOR   WIELECHOWSKI  asked   if   the   information  is   kept                                                               
confidential  and destroyed  after a  case is  solved or  after a                                                               
period of time.                                                                                                                 
                                                                                                                                
LIEUTENANT  DIAL explained  that  information is  entered into  a                                                               
report and  within 48 hours it's  sent to the DPS  missing person                                                               
clearinghouse. The  information in  the report is  retained until                                                               
the person or their remains are found.                                                                                          
                                                                                                                                
VICE-CHAIR HUGGINS asked if he is  referring to page 4, lines 22-                                                               
26.                                                                                                                             
                                                                                                                                
LIEUTENANT  DIAL clarified  he is  referring to  the current  DPS                                                               
policy. With  regard to  the requirement in  the bill  to collect                                                               
DNA samples  and medical records,  that information  is destroyed                                                               
when an investigation is complete.                                                                                              
                                                                                                                                
2:10:58 PM                                                                                                                    
SENATOR  WIELECHOWSKI asked  if  a large  number  of people  have                                                               
access to that information.                                                                                                     
                                                                                                                                
LIEUTENANT DIAL  said no. Generally  it's kept  confidential, but                                                               
can be made available to other law enforcement agencies.                                                                        
                                                                                                                                
MR.  PETERSON  asked him  to  respond  to Senator  Wielechowski's                                                               
question  about  number of  cases  and  how  many are  solved  or                                                               
outstanding.                                                                                                                    
                                                                                                                                
LIEUTENANT  DIAL informed  the committee  that 1,200-1,500  cases                                                               
are filed  with the  DPS missing  person clearinghouse  each year                                                               
and most are  found within 48 hours. Currently  about 1,000 cases                                                               
are open.                                                                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI asked if there  is a waiting period before a                                                               
missing person report can be accepted.                                                                                          
                                                                                                                                
LIEUTENANT DIAL said no.                                                                                                        
                                                                                                                                
2:12:54 PM                                                                                                                    
MR.  PETERSON  told  the  committee  that  the  language  in  the                                                               
applicability section on  page 6 isn't consistent  with the model                                                               
legislation. SB  247 will  apply only  to missing  person reports                                                               
filed after the effective date of the Act.                                                                                      
                                                                                                                                
2:14:06 PM                                                                                                                    
LIEUTENANT DIAL  stated support for  the goal of  the legislation                                                               
and expressed hope that AST could provide input.                                                                                
                                                                                                                                
VICE-CHAIR HUGGINS announced he would hold SB 247 in committee.                                                                 
                                                                                                                                
                   SB 226-VEXATIOUS LITIGANTS                                                                               
                                                                                                                                
2:21:45 PM                                                                                                                    
VICE CHAIR HUGGINS announced the consideration of SB 226.                                                                       
                                                                                                                                
CINDY SMITH, Staff, to Senator Hollis French, sponsor of SB 226,                                                                
paraphrased the following sponsor statement:                                                                                    
                                                                                                                                
     SB  226 creates  a  process in  statute  for courts  to                                                                    
     manage the  problem of lawsuits brought  by individuals                                                                    
     who are "vexatious litigants."                                                                                             
                                                                                                                                
     A vexatious litigant is defined  as a person who, among                                                                    
     other things,  repeatedly litigates the same  claims or                                                                    
     previous  adverse decisions  against the  same parties,                                                                    
     files  multiple  frivolous lawsuits,  repeatedly  files                                                                    
     pleadings  or  motions that  are  frivolous  or in  bad                                                                    
     faith,  or  repeatedly  engages  in  tactics  that  are                                                                    
     without merit or intended to cause unnecessary delay.                                                                      
                                                                                                                                
     This  bill  allows  the   court  to  impose  reasonable                                                                    
     restrictions  on  vexatious  litigants' access  to  the                                                                    
     court.  Under SB  226 a  court can  require conditions,                                                                    
     such as the posting of  security or prefiling review of                                                                    
     a  complaint by  a  presiding judge,  before an  action                                                                    
     filed  by a  vexatious  litigant  can proceed.  Several                                                                    
     states have  passed similar legislation to  control the                                                                    
     problem  of  vexatious  litigation. The  provisions  in                                                                    
     this  bill  are based  on  California's  Code of  Civil                                                                    
     Procedure.                                                                                                                 
                                                                                                                                
     Vexatious litigation  needlessly burdens  the resources                                                                    
     of the  court system,  and creates  unnecessary expense                                                                    
     for individuals  who are the target  of this litigation                                                                    
     in  the public  and  private sectors.  It is  certainly                                                                    
     important  to recognize  and  protect the  individual's                                                                    
     right to  litigate claims in  our court system.  SB 226                                                                    
     will  only  affect those  few  cases  that are  clearly                                                                    
     without  merit.  This  bill   will  provide  means  for                                                                    
     screening  out  extreme  examples  of  meritless  cases                                                                    
     before they are filed.                                                                                                     
                                                                                                                                
MS.  SMITH emphasized  that  this is  discretionary  and page  3,                                                               
lines 12-31,  provide a definition for  "vexatious litigant." She                                                               
deferred  questions about  the  bill mechanics  to  Mr. Ford  and                                                               
noted that Mr. Maassen was online to testify.                                                                                   
                                                                                                                                
2:24:20 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if  this applies  only to  people who                                                               
initiate lawsuits. Do we have no vexatious defendants?                                                                          
                                                                                                                                
MIKE  FORD, Legislative  Liaison, Civil  Division, Department  of                                                               
Law (DOL), referred to the  definition of "vexatious litigant" on                                                               
page  3.  The idea  under  paragraph  (A)  is  that you  are  the                                                               
plaintiff  and  not  the  defendant,   but  the  provision  under                                                               
paragraphs (B) (C) and (D) could apply to a defendant.                                                                          
                                                                                                                                
VICE-CHAIR  HUGGINS asked  what  kind  of a  problem  this is  in                                                               
Alaska.                                                                                                                         
                                                                                                                                
MR. FORD  explained that the  problem isn't the number  of people                                                               
who  are   engaged  in  this   conduct,  because  it's   a  small                                                               
percentage. The problem  is that a significantly  small number of                                                               
people  absorb  a  significantly  large amount  of  court  system                                                               
resources.                                                                                                                      
                                                                                                                                
VICE-CHAIR  HUGGINS  asked  if  a  vexatious  litigant  would  be                                                               
"vaccinated" from this bill if he or she hired an attorney.                                                                     
                                                                                                                                
MR. FORD said the  intent of the bill is to  deal with people who                                                               
are causing the  problem and acting as their  own attorney. Other                                                               
tools  are available  to  deal with  attorneys  who pursue  cases                                                               
without merit.                                                                                                                  
                                                                                                                                
VICE-CHAIR  HUGGINS  asked  if  this would  apply  to  liens.  He                                                               
referred to  an issue  related to  the fish  and game  board that                                                               
came up when he first became a senator.                                                                                         
                                                                                                                                
MR. FORD opined that that could be an example of abuse.                                                                         
                                                                                                                                
SENATOR THERRIAULT asked if this targets "jailhouse litigants."                                                                 
                                                                                                                                
MR. FORD  explained that other  provisions apply to that  type of                                                               
litigation.                                                                                                                     
                                                                                                                                
SENATOR  THERRIAULT  asked  if  this mirrors  what  was  done  to                                                               
address "jailhouse litigation."                                                                                                 
                                                                                                                                
2:28:32 PM                                                                                                                    
MR. FORD  replied it's a mirror  in the sense that  it's intended                                                               
to control a certain kind of litigation.                                                                                        
                                                                                                                                
SENATOR THERRIAULT  asked if the incarcerated  people would still                                                               
be dealt with under the other section of statute.                                                                               
                                                                                                                                
MR. FORD said yes, this is civil litigation.                                                                                    
                                                                                                                                
VICE-CHAIR HUGGINS stated his intention is to hold the bill.                                                                    
                                                                                                                                
MR. FORD relayed that this is also a private sector concern.                                                                    
                                                                                                                                
SENATOR WIELECHOWSKI asked if the  bill raises any constitutional                                                               
issues or if there have been challenges in other states.                                                                        
                                                                                                                                
MR. FORD replied he's not aware of any successful challenge.                                                                    
                                                                                                                                
SENATOR THERRIAULT  read the analysis  section of  the Department                                                               
of  Law fiscal  note and  questioned why  it says  the bill  will                                                               
amend the Constitution of the State of Alaska. It can't do that.                                                                
                                                                                                                                
MR. FORD acknowledged that the fiscal note needs correcting.                                                                    
                                                                                                                                
2:30:17 PM                                                                                                                    
PETER   MAASSEN,   Anchorage   Attorney   representing   himself,                                                               
testified  in  support  of  SB  226.  He  has  practiced  law  in                                                               
Anchorage for  27 years  and in that  time he's  encountered very                                                               
few vexatious  litigants. Describing access to  the courthouse as                                                               
an important safety valve, he  said that under most circumstances                                                               
he'd  be  suspicious of  attempts  to  put restrictions  on  such                                                               
access.  However,  there  are  limits  to  what  the  court,  the                                                               
Department of Law, private litigants,  and private attorneys need                                                               
to put  up with.  "That's where  SB 226 comes  into play  and can                                                               
provide a very good tool for the judiciary."                                                                                    
                                                                                                                                
MR. MAASSEN explained that he's  been litigating with Mr. DeNardo                                                               
since  2002.   Initially  State  Farm  Insurance   hired  him  to                                                               
represent a landlord  in an eviction suit against  Mr. DeNardo. A                                                               
year later Mr. DeNardo filed suit  against him, his law firm, and                                                               
Judge  Gleeson for  conspiring to  deny  discovery. That  delayed                                                               
resolution of  the underlying suit  for a year.  Ultimately those                                                               
suits were resolved but Mr.  DeNardo brought further suit against                                                               
the landlords,  he and his  law firm,  and three judges.  All the                                                               
decisions were  against Mr.  DeNardo but  each one  required time                                                               
and money to put together either  a motion to dismiss or a motion                                                               
for summary judgment.                                                                                                           
                                                                                                                                
MR. MAASSEN said that since this is  what he does for a living he                                                               
can't get too upset, but it  has impacted his personal life. When                                                               
he applied for  a construction loan he had to  tell the bank that                                                               
Mr. DeNardo was seeking $5 million  in damages in each of several                                                               
lawsuits pending  against him. This  is something  that litigants                                                               
in   ordinary  litigation   shouldn't  have   to  deal   with  in                                                               
perpetuity, he said.                                                                                                            
                                                                                                                                
2:34:41 PM                                                                                                                    
MR. MAASSEN, speaking as a  layman, said some vexatious litigants                                                               
are probably  mentally ill. "We have  to feel sorry for  them and                                                               
find some way  to deal with them." Allowing them  to vent through                                                               
the  court system  at the  expense of  private parties  and their                                                               
attorneys isn't  the way  to do  it. SB  226 is  a good  tool for                                                               
judges to use.                                                                                                                  
                                                                                                                                
2:35:21 PM                                                                                                                    
JED WHITTAKER,  private citizen from  Anchorage, opposed  SB 226.                                                               
Under  the constitution  everyone has  equal protection  and that                                                               
means that everyone has equal  access to the courts regardless of                                                               
financial  standing. Although  some  people  may cause  problems,                                                               
judges have  the right  to dismiss  lawsuits that  are frivolous.                                                               
Creating  legislation  to  address  a  problem  that  judges  can                                                               
already  solve  only makes  government  bigger  and denies  equal                                                               
protection.                                                                                                                     
                                                                                                                                
SENATOR  THERRIAULT  asked  how  he would  suggest  dealing  with                                                               
people who bring  frivolous lawsuits and don't care  if court and                                                               
attorney fees  are charged  to them because  they don't  have two                                                               
nickels to rub together. They're  judgment proof. "How do we deal                                                               
with that aspect of the equality in the system?"                                                                                
                                                                                                                                
MR.  WHITTAKER suggested  the legislature  seek  advice from  the                                                               
Alaska Supreme Court  to see if this is really  a problem because                                                               
not many  people have the capacity  to engage in litigation  on a                                                               
pro se  basis. The court  system isn't perfect but  judges should                                                               
exercise discretion as necessary, he said.                                                                                      
                                                                                                                                
2:39:13 PM                                                                                                                    
MR. FORD  explained that SB  226 is  intended to limit  access to                                                               
the  court  only "in  a  surgically  precise  way." The  bill  is                                                               
designed to  address an issue that  arises in very few  cases but                                                               
that impacts far beyond its  litigation sphere. Judges have a lot                                                               
of  authority but  dismissing  cases is  the  nuclear option.  "I                                                               
don't know of any cases where it's ever been used."                                                                             
                                                                                                                                
SENATOR McGUIRE said  there's a tendency for  lawyers to advocate                                                               
for their client regardless of  how unreasonable the position may                                                               
be. And  judges are reluctant to  dismiss cases in the  fear that                                                               
there might be something there.  She encouraged the Department of                                                               
Law  (DOL)  to think  about  whether  the  language ought  to  be                                                               
defined  in  terms of  the  motion  to  dismiss  and in  Rule  11                                                               
[Federal Rule  of Civil Procedure 11]  to make it clear  that the                                                               
judge  should be  a gatekeeper.  "There are  so many  merit based                                                               
cases, but  these few cases  … cost  people. … It's  a tremendous                                                               
drain."                                                                                                                         
                                                                                                                                
SENATOR McGUIRE encouraged  DOL and the sponsor to look  at it as                                                               
a   triangle.  The   legislature  can   do  something,   the  Bar                                                               
Association can look  at its cannons and rules of  the court, and                                                               
lawyers  can look  at their  own ethics  and ask  if the  case is                                                               
appropriate irrespective of the fees.                                                                                           
                                                                                                                                
2:43:42 PM                                                                                                                    
VICE-CHAIR  HUGGINS noted  that the  definition says  without the                                                               
assistance of  an attorney and  that there's  also a way  to deal                                                               
with attorneys who file cases without merit.                                                                                    
                                                                                                                                
MR.  FORD  said the  idea  was  focus  the  bill as  narrowly  as                                                               
possible.  "So   those  cases  that  were   brought  without  the                                                               
assistance of an attorney, but  also meet this other criteria are                                                               
the  cases  we're talking  about."  An  advantage  to SB  226  as                                                               
opposed to  relying on a judge's  discretion is that it's  a tool                                                               
that will be consistently applied across the state.                                                                             
                                                                                                                                
2:44:53 PM                                                                                                                    
SENATOR WIELECHOWSKI  said he  presumes this  would not  apply to                                                               
workers' compensation cases.                                                                                                    
                                                                                                                                
MR. FORD said it does not apply.                                                                                                
                                                                                                                                
SENATOR WIELECHOWSKI  said access to  the courts is  an important                                                               
issue. The rich  have access and the poor are  judgment proof. In                                                               
Alaska this  issue has a  real impact  on the middle  class. When                                                               
they've  been damaged,  that's their  redress. "That's  where you                                                               
have  the  David  and  Goliath standoff.  And  they're  on  equal                                                               
footing with the multi-billion dollar corporation."                                                                             
                                                                                                                                
SENATOR  WIELECHOWSKI said  he's  concerned about  not only  this                                                               
issue but  also about  defendants who work  the system  and fight                                                               
everything.  They may  lose five  or ten  cases and  have to  pay                                                               
someone $50,000, but that's nothing for a huge corporation.                                                                     
In putting  this together  we need  to give  some thought  on how                                                               
this  will impact  the majority  of  people in  Alaska and  their                                                               
access to  lawsuits and a  judicial system that's  really stacked                                                               
against them, he said.                                                                                                          
                                                                                                                                
2:46:58 PM                                                                                                                    
VICE-CHAIR HUGGINS announced he would hold SB 226 in committee.                                                                 
                                                                                                                                
There being no further business to come before the committee,                                                                   
Vice-Chair Huggins adjourned the meeting at 2:47:01 PM.