Legislature(2017 - 2018)GRUENBERG 120
02/22/2017 01:30 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s): | |
| HB104 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 104 | TELECONFERENCED | |
| + | HB 69 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 104-REPEAL COLLECTION OF CIVIL LITIG. INFO
4:36:22 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 104, "An Act relating to collecting information
about civil litigation by the Alaska Judicial Council; repealing
Rule 41(a)(3), Alaska Rules of Civil Procedure, and Rules 511(c)
and (e), Alaska Rules of Appellate Procedure; and providing for
an effective date."
CHAIR CLAMAN advised he would like to move HB 104 out of
committee today, in part because Susanne DiPetro, Executive
Director for the Alaska Judicial Council is available to testify
today in person.
4:36:59 PM
LIZZIE KUBITZ, Staff, Representative Matt Claman, Alaska State
Legislature, read for the record as follows [original
punctuation provided]:
For the record, my name is Lizzie Kubitz and I am
staff to Chair Claman. Thank you for the opportunity
to testify.
House Bill 104 eliminates the automatic reporting of
information about civil case settlements currently
required by law. The bill follows the advice of the
Alaska Judicial Council, which has recommended that
the legislature eliminate this requirement.
To give some historical context: In 1997, responding
to public interest in tort reform and the work of the
Governor's Advisory Task Force on Civil Justice, the
legislature passed tort reform legislation. One part
of the legislation responded to the Task Force's
recommendation that the Alaska Judicial Council report
on closed civil cases, using data from forms completed
by attorneys and parties in the cases. Since then,
pursuant to statute, the Judicial Council has
collected data provided by attorneys and litigants and
has produced three reports. However, much more often
than not, attorneys and litigants have failed to
comply with the reporting requirement.
In its most recent report from November 2011, included
in your bill packets, the Alaska Judicial Council
reports that from January 2001 through December 2010,
88,873 cases were resolved in the Alaska Court system
that were subject to the reporting requirement.
Because each case had at least two parties, the
Council should have received 177,746 or more reports.
However, the Council only received 23,257 reports.
This represents 13% of the Council's conservative
estimate of the number of reports it should have
received.
The low rate of reporting is the reason the Council
has not issued a report since 2011. An analysis based
on 13% of potentially available data would not be
reliable. Eliminating the requirement has also has
received support from attorneys and civil litigants,
as the reporting requirement is onerous for those who
follow it and unenforceable for those who don't.
The Alaska Judicial Council lacks the authority and
resources to enforce this outdated requirement and the
Council renews its recommendation that the legislature
eliminate it.
I'll now provide a brief sectional analysis of the
bill.
Section One repeals Alaska Rules of Civil Procedure
Rule 41(a)(3) and Alaska Rules of Appellate Procedure
Rules 511(c) and (e).
Section Two repeals AS 09.68.130 which requires
reporting of civil litigation information to the
Alaska Judicial Council.
Section Three provides that per the Alaska
Constitution, the Act will only take effect if section
one of the Act receives the two-thirds majority vote
of both bodies.
And finally, Section Four provides for an effective
date.
Copies of Rule 41(a)(3), Rules 511 (c) and (e), and AS
09.68.130 have all been included in your bill packets.
Before I conclude, I'll mention for the record that
Susanne DiPietro, the Executive Director of the Alaska
Judicial Council, is present and available to answer
questions.
Thank you for the opportunity to testify on House Bill
104.
4:40:16 PM
REPRESENTATIVE REINBOLD asked whether there has been push back
with regard to this bill.
MS. KUBITZ advised that to her knowledge there has not been push
back, and that this bill has received support from various
attorneys. She pointed out that attorneys currently must take
time out of their day to complete and file the form, and the
client is usually billed for their time. Due to the fact the
Alaska Judicial Council is receiving limited data, it doesn't
see a purpose in continuing with this requirement, she advised.
4:41:29 PM
REPRESENTATIVE KOPP noted that while on the Alaska Judicial
Council in 2007-2008, the information was seen as outdated and
unutilized and no one was seeking or collating the information
on the council.
4:42:09 PM
REPRESENTATIVE EASTMAN referred to page 1, line 10 of the bill,
which read:
CONDITIONAL EFFECT. This Act takes effect only
if sec. 1 of this Act receives the two-thirds majority
vote of each house required by art. IV, sec. 15,
Constitution of the State of Alaska.
REPRESENTATIVE EASTMAN advised that he is not familiar with this
portion of the constitution, and asked whether it is Ms. Kubitz'
understanding that the constitution does not permit the Alaska
Supreme Court to make amendments to these rules, and that the
prerogative belongs solely to the legislative branch.
4:42:47 PM
MS. KUBITZ turned to sec. 3, page 1, lines 8-12, which read as
follows:
Sec. 3. The uncodified law of the State of
Alaska is amended by adding a new section to read:
CONDITIONAL EFFECT. This Act takes effect only
if sec. 1 of this Act receives the two-thirds majority
vote of each house required by art. IV, sec. 15,
Constitution of the State of Alaska.
MS. KUBITZ explained that the Act takes effect only if the Act
receives two-thirds of a majority vote of each house, required
by art. IV, sec. 15, which read as follows:
Rule-Making Power
The supreme court shall make and promulgate rules
governing the administration of all courts. It shall
make and promulgate rules governing practice and
procedure in civil and criminal cases in all courts.
These rules may be changed by the legislature by two-
thirds vote of the members elected to each
house.[1][2]
4:43:43 PM
REPRESENTATIVE EASTMAN surmised that the Alaska Supreme Court
cannot do anything without the legislature's action in this
situation.
MS. KUBITZ deferred to Susanne DiPetro, Alaska Judicial Council.
4:44:14 PM
SUSANNE DiPETRO, Executive Director, Alaska Judicial Council,
Alaska Court System, in response to Chair Claman, said she is a
member of the Alaska Bar Association (ABA). In response to
Representative Eastman, she advised that Alaska Rules of Civil
Procedure 41(a)(3), and the Alaska Rules of Appellate Procedure
511(c) and (e) were promulgated in order to implement the
statute the legislature passed. The court system has rule
making ability, and the Alaska Supreme Court can change its
rules. Although, she explained, these particular rules were
promulgated in order to implement the statute which does not
provide a mechanism for the certification. The rule requires
certification of attorneys settling a case, and it is not part
of the statute, it is part of the rules, she advised.
4:45:35 PM
MS. DiPETRO, in response to Representative Eastman question as
to whether there is action the Alaska Supreme Court can take to
amend Rule 41, she speculated that the court could amend the
rule.
REPRESENTATIVE EASTMAN asked whether it declined to do so and
that is the reason it is before the legislature.
MS. DiPETRO advised she was unsure she could answer the question
except to say that it is customary for the legislature to do it
in this manner when a rule and a statute travel together, or are
attempting to implement the same purpose.
REPRESENTATIVE KOPP advised that this court rule is in response
to the legislature's legislation. Naturally, he pointed out,
the court would want the legislature to pass the bill to change
the rule. He continued that the court would not be inclined to
change a rule it adopted to a statute that the legislature
passed, and the court would prefer the legislature go through
the process of changing the rules.
4:47:16 PM
CHAIR CLAMAN agreed with Representative Kopp, and referred to
Representative Eastman's comment about "activist judges." He
explained that one could suggest that if there was a statute on
the books and the court actively decided to repeal the authority
to collect information, it would be considered "activist judges"
by ignoring the intent of the legislature. Whereas, he
explained, if the legislature both repeals the rule and repeals
the statute collecting the information, there is no suggestion
of activist judges and the legislature is acting in its role as
the legislature. The bill combines both repealing the statute
and repealing the rule requiring lawyers to provide the
information asked for under the statute, he pointed out.
CHAIR CLAMAN opened public testimony on HB 104.
4:48:52 PM
KEN JACOBUS, Attorney, advised that he is representing himself
and the Anchorage Bar Association.
4:49:15 PM
The committee took a brief at ease.
4:49:24 PM
MR. JACOBUS continued that he discussed this matter with the
court rules attorney and was advised that the matter of
repealing the rules would be presented to the Appellate Rules
Committee and to the Civil Rules Committee, it would then defer
to the legislature because the rules are implementing the
statute. Therefore, the ball is in the legislature's court. He
commented that the legislature should look at the 2011 report,
in which the data collected is not meaningful. Interestingly,
he noted, the civil section of the attorney general's office has
had civil attorneys performing work required to be reported
because AS 09.68.130 does not provide an exception for the
attorney general's office. Therefore, he said, either the
attorney general's office is not reporting and disobeying the
law, or it is reporting and wasting a lot of public money
providing this worthless data which could be better spent
enforcing the laws. He further commented that an experienced
probate attorney in his office recently represented a civil case
and was concerned she was in trouble because she did not know
she was required to report, illustrating that some attorneys are
not even aware of their duty to report. He described that this
statute has many problems and needs to be repealed. He added
that he personally reports and considers it an administrative
expense, and that many attorneys bill their clients for the
reporting time.
4:53:08 PM
SARAH BADTEN, Attorney, said she has been attorney in Anchorage
for approximately ten years, practices contract enforcement, and
has filled out the forms for ten years. She commented that
reporting is a complete waste of time, waste of money, and that
she bills her time, which is unfair. The purpose of the statute
was to collect data based on tort reform, and to the extent that
her reporting does anything, which it doesn't, she said she
skews the data because she does not practice tort law. She
opined that the focus should not be on the fact that people do
not fill out the form, but rather on the completely unnecessary
information on the form because no one is looking at this data.
It is archaic and she strongly hopes to get it repealed this
session, she said.
CHAIR CLAMAN, after ascertaining no one wished to testify,
closed public testimony on HB 104.
4:55:15 PM
REPRESENTATIVE REINBOLD commented that she likes most repeal
bills, and that she was thankful that she asked in the past that
the legislature have an entire session on repeal as "there is a
lot of stuff that is not applicable any longer." She added that
she does not object to Chair Claman bringing this forward as a
committee bill.
4:56:04 PM
REPRESENTATIVE FANSLER moved to report HB 104, Version 30-
LS0393\D, out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, HB 104
moved from the House Judiciary Standing Committee.