Legislature(2003 - 2004)

05/06/2004 08:16 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
    CSHB 549(JUD)am-UNSOLICITED COMMUNICATION:AIRCRAFT CRASH                                                                
                                                                                                                                
MS. VANESSA  TONDINI, staff to  Representative McGuire,  chair of                                                               
the  House Judiciary  Committee,  reminded members  that she  has                                                               
presented  HB  549  several  times so  was  available  to  answer                                                               
questions.                                                                                                                      
                                                                                                                                
CHAIR  SEEKINS asked  Ms. Tondini  if she  was able  to summarize                                                               
some  of  the conversations  that  have  taken place  about  this                                                               
legislation since its last hearing.                                                                                             
                                                                                                                                
MS. TONDINI  explained that a committee  member expressed concern                                                               
about the penalty  and she believes an amendment  may be proposed                                                               
to address that concern.                                                                                                        
                                                                                                                                
SENATOR THERRIAULT moved the following amendment [Amendment 1]:                                                                 
                                                                                                                                
     On page 2, line 9 [version Q], change $100,000 to $10,000.                                                                 
                                                                                                                                
MS.  TONDINI informed  members that  Representative McGuire  does                                                               
not object to that amendment.                                                                                                   
                                                                                                                                
CHAIR  SEEKINS  noted that  without  objection,  Amendment 1  was                                                               
adopted.                                                                                                                        
                                                                                                                                
SENATOR  FRENCH  moved  to  adopt Amendment  2,  which  reads  as                                                               
follows:                                                                                                                        
                                                                                                                                
                      A M E N D M E N T  2                                                                                    
                                                                                                                                
     OFFERED IN THE SENATE                   BY SENATOR FRENCH                                                                  
     TO SCS CSHB 549(L&C)                                                                                                       
                                                                                                                                
     Page 2, lines 8-12:                                                                                                        
          Delete all material and insert:                                                                                       
                    "(d) The attorney general or an                                                                             
     aggrieved person  may institute a civil  action against                                                                    
     a  person who  violates  this section.  In addition  to                                                                    
     injunctive  and compensatory  relief,  a civil  penalty                                                                    
         not to exceed $10,000 may be imposed for each                                                                          
     violation."                                                                                                                
                                                                                                                                
CHAIR SEEKINS objected for the purpose of discussion.                                                                           
                                                                                                                                
SENATOR FRENCH  explained that the  purpose of Amendment 2  is to                                                               
turn what  is proposed  to be  a crime  into a  civil wrongdoing.                                                               
Amendment  2  would  allow  either the  attorney  general  or  an                                                               
aggrieved person to  bring a civil action against  an attorney or                                                               
an  agent of  the  airlines  to seek  redress  for any  intrusion                                                               
during the  45-day cooling  off period. He  opined that  the main                                                               
benefit of  Amendment 2 is  that it will  allow the wrongs  to be                                                               
addressed. He said assuming that  an overworked district attorney                                                               
will file  a criminal complaint  against a lawyer  for contacting                                                               
an injured victim  of an airplane accident within 45  days of the                                                               
accident is unlikely.  He believes the caseloads  of the district                                                               
attorneys' offices will preclude them  from taking action on what                                                               
they will  see as a civil  issue. Amendment 2 will  put the power                                                               
in the attorney general's office  or the aggrieved person's hands                                                               
to take action. He repeated  that he believes this bill addresses                                                               
a civil wrong, not a crime.                                                                                                     
                                                                                                                                
MS.  TONDINI  maintained   that  Representative  McGuire  opposes                                                               
Amendment 2  as she believes  a criminal penalty  is appropriate.                                                               
Such  a  penalty  will  get  the  attention  of  the  Alaska  Bar                                                               
Association.  The existing  penalty in  HB 549  does not  include                                                               
jail time.  She furthered that  although the  district attorneys'                                                               
caseload  may be  high,  that  is also  the  case  for the  civil                                                               
division of the attorney general's office.                                                                                      
                                                                                                                                
SENATOR OGAN asked what the sanctions  would be if an attorney is                                                               
convicted of this crime.                                                                                                        
                                                                                                                                
MS.  TONDINI said  she believes  the bar  association would  take                                                               
notice of a  criminal conviction on an attorney's  record and may                                                               
disbar that attorney or take other appropriate action.                                                                          
                                                                                                                                
SENATOR FRENCH  said he believes  the answer to that  question is                                                               
"it depends." He  said the bar association  sometimes waits until                                                               
a criminal  action is  complete before  taking action,  which may                                                               
result in  an unnecessary delay. He  said if he was  charged with                                                               
this crime, he would insist on a  jury trial and appeal it for as                                                               
long  as possible.  He believes  the civil  route is  cleaner and                                                               
faster, and more  likely to lead to prosecutions  than a criminal                                                               
action.                                                                                                                         
                                                                                                                                
CHAIR  SEEKINS asked  Senator French  if  he would  use the  same                                                               
tactic to drag the case out for a civil action.                                                                                 
                                                                                                                                
SENATOR  FRENCH  said the  "aura"  of  a criminal  conviction  is                                                               
higher and a  civil charge would more likely  lead to settlement.                                                               
The  two  parties  could  settle   their  disagreement  over  the                                                               
practice of  driving airplane passengers  to the  hospital, which                                                               
is what this bill aims to stop.  He said he sees Amendment 2 as a                                                               
rational first  step; if, in  two years  it has not  produced any                                                               
results, the undesired activity can be made a crime.                                                                            
                                                                                                                                
SENATOR THERRIAULT  noted that  a criminal  charge could  only be                                                               
brought  by  the  state,  whereas Amendment  2  would  permit  an                                                               
aggrieved person to bring a civil charge.                                                                                       
                                                                                                                                
With  no further  discussion, the  roll was  called. Amendment  2                                                               
failed to  be adopted with  Senator French in favor  and Senators                                                               
Therriault, Ogan and Seekins opposed.                                                                                           
                                                                                                                                
CHAIR SEEKINS  said he  believes the criminal  penalty will  be a                                                               
greater deterrent.                                                                                                              
                                                                                                                                
SENATOR  OGAN moved  SCS CSHB  549(JUD) and  its attached  fiscal                                                               
notes from committee with individual recommendations.                                                                           
                                                                                                                                
SENATOR FRENCH objected.                                                                                                        
                                                                                                                                
The motion to move SCS  CSHB 548(JUD) from committee carried with                                                               
Senators  Ogan,  Therriault  and  Seekins in  favor  and  Senator                                                               
French opposed.                                                                                                                 

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