Legislature(1999 - 2000)
03/29/1999 01:11 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJR 18 - CONST. AM: ADMINISTRATIVE HEARINGS
CHAIRMAN KOTT announced the next order of business is HJR 18,
Proposing an amendment to the Constitution of the State of Alaska
relating to an office of administrative hearings.
CHAIRMAN KOTT indicated the committee will consider CSHJR 18(STA),
1-LS0513\G.
CHAIRMAN KOTT announced that Teresa Williams in on the
teleconference network and asked her for the citation on the court
case she mentioned at the last meeting.
TERESA WILLIAMS, Assistant Attorney General, Fair Business
Practices Section, Civil Division, Department of Law, testified via
teleconference from Anchorage. She replied the citation is 938 P.
2nd 1091.
Number 0274
EDWARD HEIN, Member, National Association of Administrative Law
Judges, testified in Juneau. The association supports the
resolution. He is also in charge of the Administrative Appeals
Office for the National Marine Fisheries Service-Alaska Region; he
is a licensed attorney; and, he is a former attorney for
Legislative Legal Counsel. Mr. Hein stated that HJR 18 is not a
new idea. One-half of the states have a central panel of
administrative law judges and hearing officers. This type of
proposal, in various forms, has been before the legislature. He
cited last year and about 14 to 15 years ago. But, this resolution
is new in that it would establish a central panel by
constitutional amendment rather than by statute. Alaska would be
the first state to do so. There are at least three good reasons
for placing this office in the constitution. He cited the
following:
First, centralizing the function of administrative
adjudication is an important change in the structure of the
executive branch, and is a subject of constitutional
dimension;
Second, a constitutional amendment would give the public a
direct voice on this issue, and it would not be subject to the
Governor's veto; and
Third, approval by voters would provide a clear public mandate
and deadline for both the legislature and the Administration
to take action.
MR. HEIN stated that previous efforts to create a central panel
have been sidetracked by fights over the administrative details.
That is to say that they aren't important. But, this resolution
focuses the debate on the main question: Is a central office of
administrative hearings a good idea for Alaska? Will it improve
the fairness, efficiency and cost-effectiveness of administrative
hearings in Alaska? Many witnesses from individual agencies have
come before the legislature expressing fears and concerns of how a
centralized administrative hearings office would affect their
agencies when much of that testimony is premature. The shape of
the proposed central panel would not be determined until the
legislature considers implementing legislation. The purposes of
the legislation are to centralize the administrative adjudicative
function of the executive branch in a single agency; to create a
core of professional, independent hearing officers who would
provide the public with both the reality and appearance of
impartial, fair administrative hearings; to eliminate costly and
inefficient duplication of hearing officers and support staff
positions in the executive branch; and to provide a uniform
adjudication process and set of rules for all who have to
participate in administrative hearings. This legislation is not
intended to limit the legislature's power to create new
quasi-judicial agencies in addition to the proposed office of
administrative hearings, nor is it intended to prevent the
legislature from continuing the adjudication function of selected
existing boards and commissions, if the legislature so chooses. It
is not intended to impinge on the adjudicatory functions of the
judicial or legislative branch, or to create a fourth branch of
government. It is not intended to disrupt the ability of the
governor and heads of agencies to carry out public policy. The
head of the office of administrative hearings would be appointed by
the governor, and the office would be within the executive branch.
A central hearings office would actually relieve executive agencies
and heads from some political pressures to decide cases a certain
way.
MR. HEIN stated the legislature, as the resolution is written now,
would determine the jurisdiction of the office of administrative
hearings in the implementing legislation. The legislature could
decide which agencies, if any, should be exempt from this office's
jurisdiction. The legislature could also decide to exempt certain
types of matters from this office's jurisdiction. The language of
this constitutional amendment does not require that the office of
administrative hearings have exclusive jurisdiction over all the
administrative adjudications. It starts with the premise that the
office of administrative hearings has jurisdiction over
adjudications in the executive branch, but it leaves the
legislature the power to carve out whatever it chooses in its
wisdom. The legislature could provide, if it wished, that the
office of administrative hearings would have mandatory jurisdiction
over some agencies and discretionary jurisdiction over other
specified agencies. Agencies over which this office had
discretionary jurisdiction could by agreement refer selective cases
to the office of administrative hearings for hearing and decision.
But, as the resolution is written now, all decisions of the office
of administrative hearings would be final and appealable to the
superior court.
MR. HEIN stated one objection raised was that in centralizing the
adjudicative function expertise would be lost; the technical
expertise that is necessary in many of the hearings that are
currently run by various agencies. But, there is no reason that
the office of administrative hearings could not have subject-matter
expertise to decide all cases within its jurisdiction. The chief
administrative law judge would have inherent authority to hire
hearing officers with certain areas of expertise, perhaps from
existing state agency hearing officers. The legislature could, if
it wished, require that appropriate expertise be included within
the office of administrative hearings or that the persons assigned
to particular cases have the appropriate expertise. The chief
administrative law judge could also provide training and continuing
education as needed. In addition, the agencies that are party to
hearings before this office could present expert testimony.
MR. HEIN stated another objection raised was that this legislation
would limit the legislature's authority to determine the office's
jurisdiction. The Office of the Attorney General argues that
because the proposed constitutional amendment uses language similar
to Article IV, section 1, the legislature could not by statute take
away some of the office's exclusive jurisdiction over all
administrative hearings. In response, firstly, the proposed
resolution does not delete the last sentence of Article III,
section 22, which authorizes the legislature to establish by law
additional quasi-judicial agencies. In other words, the
legislature would implicitly retain the authority to establish or
retain adjudicative power in agencies other than the office of
administrative hearings. Secondly, the Rozkydal v. State case
interpreted statutes which limited the right of convicted felons to
appeal their sentence to the court of appeals, and which limited
the court's jurisdiction to hear sentencing appeals. The court
held that the statutes were constitutional, but concluded that the
appellate retained the right to petition the Alaska Supreme Court
for sentence review. The court of appeals citing a supreme court
case noted that there would be a serious constitutional problem if
a statute were interpreted in a way that infringed on the supreme
court's authority as the highest court of the state with final
appellate jurisdiction. The resolution, however, does not have
such language. So, it's not clear whether a holding in that case
would apply to this proposed constitutional amendment. Finally, in
the Rozkydal v. State and Hickel v. Halford cases the courts have
stated that it would take a commonsense approach to interpreting
the language of constitutional amendments, and that it would look
to legislative reports to determine their purpose and intent. In
Hickel v. Halford for example, the court said that unless the
context suggests otherwise words are to be given their natural,
obvious and ordinary meaning. The court is generally reluctant to
construe abstrusely any constitutional term that has a plain,
ordinary meaning absent some signs that the term has acquired
peculiar meaning by statute definition or judicial construction.
Otherwise, the court defers to the meaning the people themselves
placed on the proposition. The court referred to a House Finance
Subcommittee report to determine the purpose of the amendment.
And, likewise, in Rozkydal, the court referred to a House Judiciary
Standing Committee report on HB 281 and rendered a decision based
on the description of the legislative history in that report. The
reports that the legislature writes are not ignored. That's not to
say that other intent language should not be included; and,
obviously, the clearer [the language] the better.
MR. HEIN stated another objection raised was that this is too
broad; it covers too many things, not just adjudicative hearings.
The Office of the Attorney General cites Hickel v. Halford, and
that the term "administrative law hearings" covers all agency
dispute resolutions. The intent is to cover adjudications. If
that is not clear, he suggested changing the language. In Hickel,
the term "administrative proceedings" is interpreted which while it
refers to adjudications is a different term. It was interpreted in
the context of the amendment that created the Budget Reserve Fund.
In Alaska's statutes, regulations and cases, the preferred term is
"administrative hearing". It is one that has been widely
recognized, and one that all three branches of government
understand its meaning.
MR. HEIN stated another objection raised was to the term "final
agency decision". It is not actually agency decisions. He will
not quibble about using that term, however. The intent is to show
that once a decision has been rendered by the office of
administrative hearings, it would be appealable to the court
system; it would not go back to the agency for finalization and
review.
MR. HEIN stated another objection raised was that the title
administrative law judge and chief administrative law judge are too
formal, and, Alaska has purposely not adopted the administrative
law judge style of hearing officer because it would be too formal.
That hearing officers would wear robes, and would be referred to as
"Judge" and "Your Honor". He has never found that a title makes
any difference, and how an individual hearing officer acts is up to
that officer. In addition, there are some positions in the state
that have the title administrative law judge. One was created for
revenue hearings.
MR. HEIN stated another objection raised was concern about the
hearings becoming too formal. That is a reasonable concern. The
obvious intent is to provide a less formal, less expensive, and
less time consuming process than the court system. That is
implicit with any administrative hearing procedure, but there is
nothing in this legislation that would suggest or require the
nature of the hearings to be changed.
MR. HEIN stated another objection raised was that there is no
provision for the removal of the chief administrative law judge for
cause. He suggested adding that provision wouldn't hurt. He noted
that SJR 19 has such language.
Number 1311
MR. HEIN stated, in conclusion, that he is here from the federal
government, so he doesn't have to fear any retribution for what he
says today. Therefore, on behalf of all the state hearing officers
who do not feel free to speak out publicly, either in support or
opposition, he knows of specific examples where hearing officers
have been told pointedly that they are not to be objective and
impartial because they work for an agency. There have been
instances in which executive branch supervisors have told hearing
officers how individual cases are to be decided. According to
horror stories from hearing officers from many different states, it
is not uncommon to hear that hearing officers within an agency are
subject to pressures from their supervisors to decide cases a
certain way. This reflects a disregard for the basic principles of
due processes, fair hearings and impartial hearing officers. As a
hearing officer himself, it is exceptionally important that hearing
officers are not placed in a position of jeopardizing their career
or job in order to do what they think is right in a given case.
The public also has a right to expect that a hearing officer is
going to render a fair decision, otherwise the parties, public and
attorneys come to the agencies as a matter of going through the
motions and do not expect real justice. This legislation can go a
long way towards remedying those types of problems. He is not
saying that Alaska's administrative process is particularly worse
than other states, but rather that this is an inherent problem
common in most states. The result of a central office would be to
have more impartial, professional, and better trained decision
makers, as well as better decisions that would ultimately benefit
the public.
Number 1496
CHAIRMAN KOTT asked Mr. Hein why the other 49 states, of which
one-half have this type of process, have not gone to a
constitutional amendment.
MR. HEIN replied he really doesn't know why it hasn't been done in
other states. This is the first time that he is aware of this type
of approach. There hasn't been any objection to it as far as he
can tell; there just isn't any literature on it. He has talked to
a few people who are the heads of central panels in other states
and they think it is a wonderful idea. "Maybe they just didn't
think of it before, I don't know." He feels that this is the right
approach. It doesn't sully the constitution or is inconsistent
with other types of provisions in the constitution. "I will admit,
however, that by placing this agency within the constitution, by
creating it by constitutional amendment, you are making a
commitment to the agency. You're saying, 'we're not going to be
able to turnaround in a couple of years and pass a bill to abolish
it.' You have control over funding, obviously, and you'll have
control over the--the legislation that sets up the details and the
structure of it, and you'll have continuing oversight over the
agency." It is an important change in the way the state does
business and putting it in the constitution is a way to make it
permanent and to give the public a direct voice.
Number 1635
REPRESENTATIVE KERTTULA asked Mr. Hein whether the National
Association of Administrative Law Judges supports this particular
bill.
MR. HEIN replied the National Association of Administrative Law
Judges does not have a statement on this particular bill or the
approach of using a constitutional amendment. It supports the
concept of a central panel. It supports in particular the model
Act drafted by the ABA (Alaska Bar Association). The officers that
he has spoken to from the association agree with this approach. It
is not inconsistent with other pieces of legislation. Of course,
the legislature in Alaska has the right and discretion to create
any kind of legislation that it wants in detail to create a central
panel. The 25 states that have a central panel have chosen various
structures and various degrees of coverage. He noted that no state
has 100 percent coverage, and for good reasons. He doesn't expect
that Alaska would have 100 percent coverage either. There is
nothing in this piece of legislation that is inconsistent with the
overall goal of a central panel.
Number 1735
REPRESENTATIVE CROFT said that Mr. Hein testified in favor of
Representative Ogan's bill last year. He asked him whether that
bill was constitutional. In other words, can a central panel be
set up without a constitutional amendment?
MR. HEIN replied yes. Article III, section 22, of the state
constitution, says that the legislature has the specific authority
to create quasi-legislative [quasi-judicial] agencies. This
legislation does not remove that provision. He doesn't know of any
constitutional provision that is an impediment to creating a
central panel by legislation.
Number 1779
REPRESENTATIVE CROFT said he has substantial worries that it would
limit the legislature's power. If the legislature has the complete
power to create a central power, he asked Mr. Hein wouldn't that
cause unintended problems?
MR. HEIN replied there are only problems if the legislature
actually does something. The legislature has never acted on this
issue. The bill that came before the legislature last year died in
subcommittee. The bill introduced years ago never saw the light of
day because there wasn't the will on the part of the Administration
or perhaps the legislature at the time to take action. Objections
to a 200-page bill were very easy to find, and it was very easy to
stop. "And, without some public mandate to do it, and some time
limit to get it done, as this would do if it passes, I don't think
the legislature will approve any legislation on a central panel.
Now, show me I'm wrong." This legislation asks the legislature to
make a commitment to not only create an agency and accept the basic
concept, but to put it before the public to make the final
decision. It still leaves the difficult battle of sorting out all
the details of a central panel. Clearly, if this passes the public
vote, the legislature will have a major task on its hands. The
resolution starts from the premise that there would be an agency
with jurisdiction over administrative hearings and that the various
agencies would have to come before the legislature and justify why
they should be opted out. They might have very good reasons for
why they shouldn't be covered under a central panel. But, this
starts with that premise. It gives the legislature marching orders
and direction. In essence, by approving the resolution, the
legislature is agreeing to put itself under discipline; and,
frankly, that is a big part of this.
Number 1934
REPRESENTATIVE CROFT stated it seems that the discipline may be
imposed by the courts. If this vests administrative law hearings
and final agency decisions [in the office of administrative
hearings], then it would be for the legislature to sort it out
later. The courts would sort it out when the legislature has
plenary power to do it now. "If we enact this, we may have a much
more limited power. It may be the court telling us which decisions
are under this and which aren't, and, not which ones we choose. In
fact, the court would be telling us what their reading of 'final
agency decision' is, and when we make out differing allocations
they'd be telling us whether it's right or wrong under this
provision and that worries me."
MR. HEIN said he is not wedded to any particular language in the
resolution. He is interested in the basic concept and goals. He
suggested changing the language, if there are concerns. It can be
easily changed, if there is a consensus. The courts have said that
they will interpret the language in an obvious way. The question
still is one of liking the concept or not.
Number 2016
CHAIRMAN KOTT said, if the legislature likes the concept, wouldn't
it be more efficient to proceed statutorily in pieces rather than
to come up with a 200-page bill? He thinks, that the legislature
gives up some of its responsibility, if a constitutional amendment
goes before the voters.
MR. HEIN said this resolution is more efficient because it
recognizes that this is a big job, looks at the administrative
process as a whole, deals with the Administrative Procedure Act and
all the different agencies and statutes that might be affected by
this. That could very well take two years, but this cuts across
legislatures; it provides a mandate that would supply the
consistency lost from legislature to legislature. The resolution
would give the time frame and requirement to work on this large
project over a period of two years or more. In addition, there is
nothing in the resolution that says the legislature can't bite off
a little bit at a time. It would allow for some experiment and
would require the participation of the Administration and the
different agencies to come forward and explain why they think this
is or isn't a good idea and why their particular board or
commission should or shouldn't be under a central office. This
resolution would provide the commitment and need to work on this
issue during the interim, and there is nothing to prevent the
legislature from assigning a special committee to work on it year
round in order to come up with a proposed bill before the public
even votes on it. It's up to the legislature. He reiterated a
constitutional amendment gives more options.
Number 2203
REPRESENTATIVE MURKOWSKI asked Mr. Hein how this resolution does
not create a fourth branch of government, intentionally or
unintentionally.
MR. HEIN replied when he was in school the fourth branch of
government was the press. The administrative branch is sometimes
referred to as the fourth branch of government. It was not
originally part of the U.S. Constitution, and it is not spelled out
very well in the state constitution. There is quite a lot of
latitude for the legislature to create an administrative branch by
establishing as many boards and commissions as it so chooses. The
resolution is not talking about a separate branch of government; it
is talking about the legislature asserting its power to tell the
executive branch that it would like this function centralized
within the executive branch. It doesn't take it outside of the
executive branch. A governor's appointee heads the office of
administrative hearings. In addition, the legislature is not
required to put everything in this central agency. It wouldn't
make sense to do that ultimately. It really challenges the
executive and legislative branches to decide what is their paradigm
for administrative hearings. Are administrative hearing officers
simply instruments of executive agency policies? Are they there as
just one more staff member to further that particular agency's
stated and unstated, written and unwritten policies? Or, are they
there as a middleman between the public and government who don't
have a pride of authorship in the regulations or an investment in
them? The public wants that. It would be refreshing for the
public to go before a hearing officer and know that this person is
not having informal, ex parte conversations on a regular basis with
people in the agency. He noted that the executive branch is a
microcosm of the three branches. It was designed that way and has
been that way for every state and the federal government for a long
time now, at least since the New Deal. There are quasi-legislative
and quasi-judicial functions within the administrative branch. The
question is, can the decision makers become overwhelmed with
pressures from their own agencies to interfere with the outcome of
a particular case? He has heard executive branch supervisors and
people express concern about the quality of hearing officers in
other agencies. They are concerned that the independent hearing
officers would not decide a case the way that they would want to.
If there is concern about the quality and competency of a hearing
officer, the implementing legislation can specify the standards,
review the office's budget and oversight - the traditional
functions that the legislature performs with respect to the
executive branch.
TAPE 99-20, SIDE B
Number 0001
MR. HEIN continued. He thinks that it is obvious, when creating a
central panel, that the agencies will have to live with the
possibility that they could lose. That's just the way it is, but
it is still within the executive branch. He doesn't see it as a
separate branch.
Number 0035
REPRESENTATIVE GREEN referred to the testimony earlier regarding
dealing with this issue in segments, and asked Mr. Hein whether he
thought that meant it would require coming back to the constitution
on several occasions with subsequent pieces of legislation to add
various departments to the constitution.
MR. HEIN replied no. He suggested using one constitutional
amendment to establish a centralized office thereby making a
commitment for a centralized process. Then, in the implementing
legislation, decide how much or how little of the agencies boards'
and commissions' work it should deal with. He suggested initially
giving the office limited jurisdiction and as it develops expand
its jurisdiction. He sees the resolution as setting up a permanent
framework. The idea is not to come back to the constitution again,
but to get the big question settled. The details can be worked out
later with as many bills as needed.
Number 0142
REPRESENTATIVE GREEN said one of the concerns of getting the tax
court appeal set up was expertise. There are states with a higher
repetition of certain things that an administrative law judge could
deal with year round. There could be a tax appeal from an oil
company which would be massive in importance, but small in
frequency. He is concerned because Alaska is small and even though
the expertise will have been established in several jurisdictions,
there will not be enough load in each to require that expertise.
Number 0194
MR. HEIN stated that is one of the things a central panel is
intended to address: the extent that hearing officers in agencies
don't have enough work. A central panel could find other work and
keep a hearing officer busy full time. It would also relieve the
pressure of agencies to use them for the purposes of drafting
policies and regulations. The resolution does not suggest that a
hearing officer would have only one area of expertise. With a
centralized agency there is continuing education, cross-training
and backup. If there is a heavy case load for a period of time,
extra officers could be assigned for that period. The problem with
an isolated hearing officer in an agency is that officer doesn't
have any professional support which is different than the
professional problems of advocates, court judges and attorneys. It
is a profession within its own right with unique practices and
problems. The judicial branch doesn't have problems of direct or
indirect pressures from bosses that administrative hearing officers
have. In terms of expertise, he doesn't see that as a problem
because whoever does the hiring in such an office would have the
option of hiring people from existing agencies now, as well as
expertise in the private sector.
Number 0356
REPRESENTATIVE JAMES noted that she has been working on changing
the business of appealing to the same agency that writes and
enforces the law [regulation] for six years now. There may be
different people involved, but they all work for the same person -
the commissioner. The next step for a complaint that has been
ruled in favor of the complainant by a commissioner is the courts
without this administrative law judge. If there is this panel of
innocent folks, a complaint could then be taken to them after going
to the commissioner. In other words, all of the same steps that
are taken now are still there, except that a final decision for an
agency would be put in this panel prior to going to court. In
addition, in relation to the expertise issue, she believes that
expertise means bias because each party would be presenting their
cases before an administrative law judge.
MR. HEIN said it was accurately said last week that, "one size
doesn't fit all." There is quite a range of different kinds of
boards and commissions and matters that the agencies have
jurisdictions over, and their procedures differ somewhat. A motor
vehicle licensing matter is different than a public utilities
matter or workers' compensation matter. It is a question of who an
agency, board or commission wants to make the final decision before
going to court. It is a question of the role of the commissioner.
It is an agency-by-agency determination, and it wouldn't be the
same for each. An agency could make certain determinations with
something less than due process, for example, that becomes the
agency's decision which would be appealed to an hearing officer in
a central panel or otherwise. An agency could maintain its own
hearing officer, for example, that would make recommendations to
the governing board or commission. He reiterated that no state has
100 percent coverage; it's a mixture. And, within certain states
there are different structures even for the central panels. He
suggested looking at the different states.
MR. HEIN said, in response to the question of expertise, it varies
from agency to agency. Some agencies require a higher level of
technical expertise. He cited motor vehicle matters would be less
technical than utility matters. The level of expertise depends on
the structure of the central panel. For example, it could be
structured so that a hearing officer represents an agency and in a
hearing there would only be the officer and the citizen, for
example. In essence, it's a two-party case, but only one party is
there. In that case, it is easy to see why an agency would start
to look at that hearing officer as its person and is suppose to
represent the agency's point of view. A central panel represents
a more even-sided structure where an agency could or might not be
represented. There is expertise by virtue of training and
experience by others providing expert testimony/documentation that
could be challenged by either side. This suggests a two-party
system where both sides would be represented before an impartial
hearing officer who would have some expertise and who would bring
in other expertise on a case-by-case basis.
Number 0829
CHAIRMAN KOTT referred to Mr Hein's suggestion that there are
hearing officers in various agencies who are not making independent
decisions and stated that is extremely alarming. There must be a
remedy to ensure that doesn't occur. Maybe this is the remedy, if
in fact that is true.
Number 0868
REPRESENTATIVE ROKEBERG asked Mr. Hein whether he would find it
troublesome to amend the resolution to include the language, "...to
render final agency decisions or recommendations to the boards or
commissions...". The boards and commissions are constitutionally
empowered. It seems that giving the final decision to the
administrative law judge would negate the powers of almost all the
boards and commissions from making final determinations. It seems
that this would work well for an administrative law judge to make
a decision that is passed on to the board or commission to
determine the punishment. That is where the expertise lays; they
could decide whether revocation [of a license], for example, is
appropriate.
Number 0930
MR. HEIN replied it's not necessarily a problem; it's just that the
existing legislation makes a policy choice. The existing
legislation starts with the premise that all the decisions of the
central panel would be final decisions. If the legislature prefers
to build in more flexibility, it can certainly do so...
REPRESENTATIVE ROKEBERG interjected and stated not under this
resolution. The language needs to be changed to give the
legislature the discretion to prescribe what it should be doing.
MR. HEIN said he agrees that the existing language has a bias in
favor of [the central panel making the] final decisions. But,
Representative Rokeberg's suggested language leaves open who would
decide the final decision. Obviously, that could be spelled out in
the subsequent implementation legislation.
Number 1011
REPRESENTATIVE CROFT said that Mr. Hein reads the language, "The
jurisdiction of the office shall be prescribed by law.", as 100
percent, 0 percent, or anywhere in between. He asked him whether
it could say that the jurisdiction of the office is nothing and
keep that for 10 years.
MR. HEIN replied to put in nothing would undermine the whole
purpose of the bill. He doesn't know what a court would do with
that language. It's the same as a zero fiscal note.
REPRESENTATIVE CROFT asked Mr. Hein whether there couldn't be a
zero fiscal note.
MR. HEIN replied it could be done, but there probably would be
challenges to it. A constitutional amendment is different than
dealing with something that is just in statute. The current
language does not restrict the legislature beyond what is says. It
suggests that the office would have some jurisdiction, but it
doesn't say how much or how little. It arguably could be read as
having all jurisdiction. "You're hear to make these policy
choices, and the words can come later."
Number 1181
REPRESENTATIVE CROFT said if a jurisdiction is put over a very
small amount, then it would behoove the court to say whether there
is enough to meet the jurisdiction.
MR. HEIN said anything that the legislature does is subject to
reasonableness. He can't say what the courts would do; it depends
on the final language. The clearer the legislation the better. He
doesn't know how much latitude a court could give to the
legislature. Typically, the courts give the legislature a very
wide latitude, particularly since there is history behind
legislation. He assumes that the legislature would adopt
legislation consistent with the amendment.
Number 1257
CHAIRMAN KOTT asked Mr. Hein, if the resolution is passed and goes
into effect, whether he is correct in saying that if the
legislature does nothing then nothing happens.
MR. HEIN replied, "That's probably right."
CHAIRMAN KOTT commented there is a shallowness in the constitution.
MR. HEIN commented perhaps there is a constitutional impasse.
CHAIRMAN KOTT asked Mr. Hein whether there is merit in including a
specific date, even though a legislature can't legislate future
legislators. "It just seems like we could be spinning our wheels
and not getting anywhere. And, if we can't pass legislation today
that would in effect implement something very similar, there's no
guarantee in the future. In fact, there's probably lesser of a
guarantee."
MR. HEIN replied, if the legislature has the authority to stop
time, it can probably find a way around any deadlines imposed.
This version of the resolution has a date by which hearings would
come under the jurisdiction of a centralized office. If the office
was not yet in existence and ready for hearings, then there might
be a bunch of parties filing suits to force the state to do
something. He hopes that should the public vote, particularly with
any kind of a substantial margin in favor of the amendment, that
the legislature and the Administration would get the message and be
responsive politically.
Number 1427
CHAIRMAN KOTT closed the meeting to public testimony.
Number 1441
REPRESENTATIVE ROKEBERG stated he is concerned with the language,
"final agency decisions" and suggested adding the language, "...or
recommendations to boards and commissions...". "It would change
the focus here from a final agency decision by the administrative
law which would relate--that'd be okay because it'd have to do with
the agency, but then the recommendations to the boards and
commissions could be recommendations to leave the final power up to
the duly constituted boards and commissions which are in the
constitution and are established by law. That would seem to be
consistent with the ability to prescribe by law or by--have the
legislature pick and choose. Because the way this is drafted now,
I don't think they could pick and choose, in my opinion. Or, if
they can, this ain't gonna pass because the public's not going to
like it." There is already poison in the water hole by alienating
the boards and commissions which need to be dealt with from a
political sense. He also thinks that there is merit to allow them
to at least have a role. Right now, they use hearing officers to
make comments and decisions, but the board or commission actually
makes disciplinary decisions based on recommendations from the
hearing officers. One of the reasons that he likes the bill is
because the attorneys from the Department of Law don't get around
to taking up some of the matters before agencies because they are
a low priority. This bill addresses a huge need. Nevertheless,
there needs to be some more legal words in the resolution to give
the legislature discretion to prescribe more laws.
Number 1561
REPRESENTATIVE JAMES noted that the bill does not say to render
"the" or "all" final agency decisions; it just says, "to" render
final agency decisions. The agencies determined to have authority
would be prescribed by law. She doesn't see a problem with it.
Number 1624
REPRESENTATIVE KERTTULA commented that this piece of legislation
leads to so many unintended consequences. It's one of the
broadest, more unthinking pieces of legislation that she has seen
this session. She has worked with many, many administrative
agencies and hearing officers, and her experiences have been vastly
different than the fears expressed by Mr. Hein and others. She
thinks that at the kernel of the issue is a grain of truth - the
fear of unfairness. That kernel of truth deserves some looking at
and flushing out. Many agencies don't use the APA (Administrative
Procedure Act), for example, which might be an avenue to use to
clean up some of this concern. But, to take this type of
broad-brush approach, when the legislature couldn't enact a bill
with specifics last year, is unbelievable. The way that she reads
the language in the bill is that the office of administrative
hearings has the power. The court may read it that way as well.
Two lawyers who have testified who practice exclusively in this
field are very concerned about this as well. She called this piece
of legislation the chicken before the egg.
Number 1741
REPRESENTATIVE CROFT said he agrees with Representative Kerttula.
It would put all of the power into the office of administrative
hearings. It is something, however, that the courts will decide.
At its best, it does nothing. At its worst, it is a substantial
judicial straightjacket. Chairman Kott is right in that the
legislature should start with a small, identified area that people
agree on. In addition, it upsets a series of historical policy
determinations, such as those relating to workers' compensation.
In that board, labor and business are relatively happy with the
process because they helped form it. It's a major peace treaty in
a difficult area, and this bill would blow that out of the water.
No state has 100 percent coverage, and there is a substantial risk
that this is what the bill would require. The funding issue is an
interesting question. If funding was cut, the state could find
itself in a lawsuit. He commented, "You can't do that with this
jurisdiction, any more than you could cut off all funding for the
court system." He thinks that any good idea taken too far can
become a bad idea. There is a kernel of a point here, and it
should be handled incrementally. This way is just fraud with
danger. It also seems odd that the legislature would force itself
to do something when it has not yet convinced itself to do
anything. He's not sure that the legislature should do something
that is irrevocable, when it is not sure that it wants to something
temporarily.
Number 1967
REPRESENTATIVE JAMES reiterated that the language is just an
authorization to do it. She asked Representative Croft whether a
jurisdiction such as workers' compensation could be denied by law.
REPRESENTATIVE CROFT replied it would be very different if the
language read, "The office of administrative hearings shall have
the power to..." rather than, "The power to conduct administrative
law hearings and to render final agency decisions is vested in...".
That kind of language implies that the power isn't anyplace else.
That is the worrisome part of the language. The second sentence,
"The jurisdiction of the office shall be prescribed by law.", tries
to take it back. That is what a court would have to wrestle with.
That's why the language of the jurisdiction of the courts is being
looked at. He said, "'The supreme court shall be the highest court
of the State, with final appellate jurisdiction.' And, if we try
to take away their power, we can limit or condition or put fees or
those sorts of things, but if somebody doesn't have an appeal to
the supreme court someway, we've gone too far and the case law
makes it clear there."
Number 2141
REPRESENTATIVE ROKEBERG commented that the second sentence in
Section 1(a) is desirable in that the legislature would be able to
prescribe that by law. But, there is a conflict between the two
sentences and he's not so sure that there is a complete distinction
between them. If this committee can't agree on the clarity of the
language, he wondered how the average voter would figure it out;
and, consequently, it would fail to get the public's support.
Number 2212
REPRESENTATIVE SCOTT OGAN, Alaska State Legislature, said it seems
that a lot of the discussion is about who would have the last say.
He submits that a central panel, without a vested interest in
covering up something, would be the best one to make the final
decisions. Although the boards would lose their quasi-judicial
authority, they could certainly have hearings and make
recommendations to the administrative law judge. It is more
appropriate than the other way around, otherwise there is another
layer of bureaucracy and more hoops for the public to jump through.
If this bill dies, in his opinion, the Administration will not come
to the table. He introduced the bill this year because two years
ago he tried and the Administration ran interference every step of
the way. "I would suggest to you, if this bill dies, then we'll
just keep on having this kind of hearing that we've got now
and--and the public won't be well served and they won't have due
process. I honestly believe that with every fabric of my being,
cause I've put a lot of blood, sweat and tears into working on this
two years ago, and just had hurdle after hurdle put up. It wasn't
a linear process; it was a circular process. We'd all--we'd jump
through these hurdles then they'd put up some more. And, so, this
forces this issue to be resolved. And--and--I think, if there's
problem with some of the language--you'd like to have a little bit
more legislative authority, I think that can be adjusted."
Number 2388
REPRESENTATIVE ROKEBERG said he supports the legislation, but has
concerns about how it would work practically. Right now, there are
administrative hearings in the boards and commissions, and there
are administrative hearing officers within the departments that
adjudicate grievances. The commissioners then make the final
determination on the punishment. For example, the APUC (Alaska
Public Utilities Commission) has a hearing officer, but the full
commission makes the final decision. He is trying to make sure
that there is flexibility, and that the legislature can by statute
give guidance.
TAPE 99-21, SIDE A
Number 0001
REPRESENTATIVE OGAN said that the Administration, two years ago,
kept saying that it supported the concept, but it wanted to see the
legislation. "Until then, I think, you know, you let 'em run
interference on this one and kill this bill, then we can forget
about anything ever being done."
Number 0045
CHAIRMAN KOTT assigned the bill to a subcommittee consisting of
Representative Murkowski as chair, Representatives Green and
Kerttula. The intent is not to bury the bill, but to deal with
some of the issues discussed today. He cited working on the nexus
between the first two sentences in Section 1(a), the issue of
removing a judge for cause, and tying a date to mandate the
legislature to act.
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