Legislature(1999 - 2000)
04/30/1999 01:20 PM House JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HB 214 - PRISON LITIGATION
Number 0624
CHAIRMAN KOTT announced that the next item of business would be
House Bill No. 214, "An Act relating to litigation involving
correctional facilities; and amending Rules 59(f), 60(b), 62, and
65, Alaska Rules of Civil Procedure." The first hearing had been
the previous day, and some amendments had been adopted. He noted
that there was a new proposed committee substitute (CS).
Number 0643
REPRESENTATIVE ELDON MULDER, Alaska State Legislature, sponsor,
pointed out that he had been awaiting the arrival of Mr. Luckhaupt,
drafter, because of the belief that there was an amendment,
discussed the previous day by Representative Croft, yet to be
adopted. However, Mr. Luckhaupt had incorporated that amendment
into the new proposed CS.
Number 0686
REPRESENTATIVE ROKEBERG made a motion to adopt the proposed CS,
version 1-LS0562\I, Luckhaupt, 4/30/99, as a work draft. There
being no objection, Version I was before the committee.
CHAIRMAN KOTT asked Mr. Luckhaupt to go through the changes.
Number 0718
GERALD LUCKHAUPT, Attorney, Legislative Legal and Research Services
Legislative Affairs Agency, informed members that Representative
Croft's amendment, which put a time limit on consent decrees that
didn't have to comply with the provisions of this Act, can be found
on page 4, lines 10 and 11. He noted that the sentence that begins
on line 8, continuing to the comma on line 10, basically existed
the previous day. Added is, "provided the prospective relief does
not continue for a period of more than two years." He stated his
understanding that an outside time limit of two years is desired.
MR. LUCKHAUPT pointed out other changes. In response to one
amendment proposed the previous day by the Department of Law,
regarding motions to modify, on page 3, line 30, he had added
"modify or" [stated by Mr. Luckhaupt as "modify or terminate"]. To
make that section work, he also had added, on page 4, line 4, the
words "modification or". In addition, he had changed "prison" to
"correctional facility" wherever it appeared in the bill.
Number 0842
REPRESENTATIVE CROFT referred to page 4, lines 10 and 11. He noted
that a consent decree would only last two years. He said he'd
thought the mechanism would be that it couldn't continue unless, at
the end of two years, the court looked at it and said there are
still ongoing, current - not prospective - statutory or
constitutional violations.
MR. LUCKHAUPT replied that he'd had some trouble figuring out how
to do that. It is the concept in the bill for consent decrees and
prospective relief ordered by a court when the court finds a
present violation. However, he pointed out, a court cannot impose
injunctive relief until it finds a current violation; so, that is
rather a given.
MR. LUCKHAUPT said this was allowing the state to agree to
injunctive relief without a current violation, as he understood it,
in order to avoid litigation costs, or something along that line.
He himself was a bit confused, he said, about how to tie this in to
the "requirements that apply to all new actions that are filed, and
existing actions on the effective date of the Act, if those
findings weren't made to begin with, and we agreed to the
imposition without any of those findings being made." Mr.
Luckhaupt suggested they could attempt to say that the court can
continue it, if the court makes those findings. He noted that Mr.
Guaneli was shaking his head.
Number 0991
DEAN GUANELI, Chief Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, suggested
that Representative Croft had accurately characterized it the
previous day: It would terminate in two years unless the court
continued the order after making certain findings. Mr. Guaneli
noted that it now says, "provided that the prospective relief does
not continue for a period of more than two years".
MR. GUANELI suggested adding, on page 4, line 11, after the phrase
"more than two years", the language, "unless the plaintiff proves,
and the court orders, that continuation of the relief is
appropriate under the standards set out in subsection (c)." He
pointed out that subsection (c) is the standard that allows the
court to continue relief after the state has moved to terminate it
after two years. He said that gets towards Representative Croft's
concern, although he would defer to Mr. Luckhaupt as to whether it
is absolutely correct.
Number 1100
REPRESENTATIVE CROFT asked whether it would be (c) or (a) for the
standards.
MR. GUANELI answered that subsection (c) sets out the standards for
continuation of a court order. If it presumes a court order has
been in effect for two years, and the state has moved to terminate
it, that allows the court to continue it, under certain standards.
He noted that subsection (c) refers back to (a). However, (c)
requires that the plaintiff prove a current violation of a state or
federal right.
Number 1148
REPRESENTATIVE KERTTULA pointed out that it is a consent decree.
She asked whether it wouldn't be better to say, "unless the court
finds," rather than limiting it to, "unless the plaintiff proves,"
so that either party could bring it in. She noted that the
language in (c) says "unless the court finds."
MR. GUANELI replied that he doesn't have a problem with that. He
added, "I think, then, the burden of proof falls under the ordinary
rules of court; in general, in a civil action, a plaintiff has to
prove a case."
Number 1201
REPRESENTATIVE GREEN asked whether it would say, "unless the court
finds and orders".
MR. GUANELI said he thinks that would work.
Number 1219
REPRESENTATIVE ROKEBERG referred to the definition on page 5, lines
14 and 15, which read, "(5) 'prospective relief' means all relief
other than compensatory monetary damages". He asked if that is a
general legal definition, pointing out that, to him, "prospective"
means "future." In addition, for the new amendment, they had
discussed anticipating a problem. He asked if the word
"prospective" relates to the timing and would in any way negate the
ability to enter into an agreement.
Number 1279
MR. GUANELI agreed that "prospective" tends to refer to something
that applies in the future. He said he believes that the intent
was to be as broad as possible, however, to include all relief that
a court could order, unless the court was going to order monetary
damages, which don't really apply in the future. He suggested it
may also be based upon definitions in the federal law, trying to be
as broad as possible. He noted that in a consent decree situation,
the court doesn't have to make a finding; in fact, the state
sometimes would rather the court not make a finding when it has
been in violation of the constitution. He restated that
prospective relief allows them to agree to relief that would accrue
in the future, which is, he believes, what they want it to do.
Number 1406
MR. LUCKHAUPT added that the definition of "prospective relief"
here refers to all relief, and then "relief" is defined below that
to include any legal or equitable remedies.
REPRESENTATIVE ROKEBERG reiterated his concern that it is different
from the normal definition.
MR. LUCKHAUPT replied that he himself wouldn't say that. He agrees
with Mr. Guaneli that this language comes from the federal Prison
Litigation Reform Act (PLRA), he added. In a civil action for
damages, there is a judgment executed, which is the end of the
case. However, other types of relief work into the future,
including injunctions and other equitable relief, as well as some
specialized legal forms of relief. If a current violation is
found, the court could say that certain types of exercise must be
provided, for example, as the U.S. Supreme Court requires at least
15 minutes a day of exercise for all prisoners; the court enjoins
the state from not providing that. It is an example of prospective
relief that operates in the future, as opposed to a prisoner's
suing for exercise that wasn't provided for the last year, with a
resulting monetary award.
MR. LUCKHAUPT pointed out that to impose prospective relief, a
current violation must be found of a constitutional or statutory
right. However, Mr. Guaneli's amendment the previous day would
allow a court to impose the prospective relief without that
finding, in response to an agreement with the state, and then the
limitation would come in that they are currently discussing.
Number 1561
REPRESENTATIVE MULDER requested further discussion of the language
on page 3, subsection (d), which began, "(d) A defendant may not
file a motion to modify or terminate under (c) of this section
until". He said disagreement may exist in relation to the fact
that they are now limited in the ability to not only terminate but
also to modify a court order. He asked that both Mr. Luckhaupt and
Mr. Guaneli address the issue.
Number 1611
MR. LUCKHAUPT explained that the concern arose regarding whether
the state should be able to come in six months or a year after
relief had been ordered. He cited Cleary as an example where the
judge started imposing fines, then sent prisoners off to Arizona
and found alternative ways to house the prisoners in order to
exceed the population caps. Mr. Luckhaupt suggested that the
legislature might believe it wise that the state could come in and
say, "Hey, we corrected this problem. ... We've had an intervening
legislative session. The ... finance committees and the
legislature have provided funds to alleviate this constitutional
concern. We don't want the court overseeing what we're doing
anymore with this, or at least some portion of the remedy."
MR. LUCKHAUPT pointed out that some remedies may be on the small
side, such as saying the state won't open prisoners' mail, for
instance. For those, the remedy would be easy, and the state would
want to request that the court not impose those burdens anymore.
Mr. Luckhaupt told members:
That can't be done now. That was able to be done on the bill
before this amendment was added yesterday. And, again, this
is a provision that's not in the federal PLRA. ... We've
discussed it at some length, and it's, I think, something Mr.
Guaneli believes is necessary, again, to provide the
administration with as much leeway and opportunity to
negotiate with potential plaintiffs as they can. ...
But it also, potentially, rests a greater burden on the
legislature when we enact this, where the legislature is
impliedly saying that "you can do this, and ... we'll abide by
what you decide." And the legislature is impliedly saying
that we're going to go ahead and fund whatever you agree to.
And that maybe is a little downside to doing that.
I brought the issue up with Representative Mulder, and I think
he just basically wants the Department of Law to ... put on
the record what their feelings are on this, and what the
justification is.
REPRESENTATIVE MULDER nodded in assent.
Number 1757
MR. GUANELI advised members that the bill now says, basically, that
if a court finds a violation of the constitution and issues an
order, or if the state enters into a consent decree, that will last
a period of two years. After that, the plaintiff has to come back
and prove that the state is still in violation of the constitution,
if the plaintiff wants that court order to continue.
MR. GUANELI said he believes that some federal provisions also have
a two-year period. But in Alaska it makes sense, he stated,
because that is a couple of budget cycles, or one legislature.
After two years, one can almost presume there will be some changed
conditions in the state's budgetary situation and, certainly, in
the executive branch departments.
MR. GUANELI suggested that it flies in the face of what they are
trying to structure here, however, to say that the state could come
in and get 90 percent or 95 percent of the court order set aside in
six months. He believes that is tied not only to preserving
executive and legislative flexibility, but also to giving
plaintiffs and judges some certainty about the time period during
which the order will remain in effect. He stated his belief that
this bill was tailored to really reflect the realities in Alaska.
MR. GUANELI emphasized the importance of how the Alaska Supreme
Court will interpret this. He said the federal courts have pretty
uniformly upheld all the major aspects of the federal PLRA.
However, the Alaska courts chart their own course, and they are
trying to fashion legislation that will be upheld by the Alaska
Supreme Court. He added, "The worst thing that I think could
happen is if ... we pass something that really is too limited, and
we're all counting on, ... a year from now, or a year and a half
from now, getting out from under the Cleary case, and we're
thwarted by the courts because they say that this was too
restrictive."
MR. GUANELI advised members that he believes this two-year
limitation is an appropriate period of time - whether it applies to
a part of an order or the entire order - for a court order to be in
effect after the state is found to have violated the constitution,
or if the state has agreed to a consent decree. He also believes
that it should apply to all parts of the order. He concluded,
"That's the basis for it: We want something that's going to be
upheld by the courts, and I think we would be very nervous about
moving to modify any significant part of an order before that
two-year period, without running some risk that the court's going
to shoot us down."
Number 1908
REPRESENTATIVE MULDER asked Mr. Guaneli whether the department
could move for a modification under Rule 60(b) of the Alaska Rules
of Civil Procedure.
MR. GUANELI replied that Civil Rule 60(b) can be used at any time
by the state to try to get out from any court order. However, part
of the reason why this legislation is needed is that it hasn't been
a very effective remedy in Alaska or the rest of the country.
Number 1941
REPRESENTATIVE KERTTULA asked, "What are your rights to modify
under the Cleary order right now?"
MR. GUANELI responded that a provision in the Cleary settlement
itself says that if there are significant changed conditions,
either party can come back to court and ask that it be modified.
Essentially, it is the same standard that exists under Civil Rule
60(b). He noted that Rule 60(b) has a number of provisions for
fraud or mistake, for instance, but there is also a catch-all to
ask to be let out for any other reason. Mr. Guaneli concluded,
"That's what we'd be going under, sort of this catch-all provision
in 60(b). It's not very effective, it's restrictively interpreted
by the courts, and it just doesn't work very well."
Number 1983
REPRESENTATIVE KERTTULA inquired, "Have you brought motions to
modify under Cleary, and have they been successful?"
MR. GUANELI replied that the state has brought motions to modify
Cleary in specific instances, usually relating to the population
caps. Provisions in Cleary specify a certain inmate-to-staff
ratio, certain programs and things like that, and certain square
footage standards. In some institutions, the square footage has
been increased, with added cells or added dorms, or there has been
a staff increase. When that happens, they go back to the court to
ask that the cap be raised a little. "Those are the kinds of
things that we have asked the court to modify the judgment, and so
far, we've been successful in those," Mr. Guaneli concluded.
Number 2030
REPRESENTATIVE KERTTULA asked if Mr. Guaneli or someone from the
Department of Corrections (DOC) had the answer to her previous
day's question about population limits.
MR. GUANELI said he doesn't have the numbers at hand, but that Mr.
Cooper from the DOC, who was present, was well-versed about that
and what the impacts would be on moving any large number of
prisoners from Arizona.
Number 2059
REPRESENTATIVE ROKEBERG remarked that he isn't sure he understands
subsection (f) on page 4 in light of this new amendment. He asked
whether it is consistent.
MR. GUANELI clarified that a motion to modify or terminate would
require the plaintiffs to come in and prove that unconstitutional
conditions still are occurring. Subsection (f) says the court
shall promptly rule on the motion, and is, he believes, an attempt
to restrict the court's ability to prolong its ruling.
Number 2130
REPRESENTATIVE ROKEBERG referred to page 4, lines 6 and 7. He
stated his understanding that subparagraph (3) basically is a
one-year standstill relating to Cleary before going to court.
MR. GUANELI explained, "Certainly, the department wants to be in
the best position it can be in, when it moves to terminate. Even
though we believe the plaintiffs bear a fairly heavy burden of
proving there are ... unconstitutional conditions, and we don't
believe that there are, ... the department wants a period of time,
so it can be sure that it's in the best position to move for that
relief."
MR. GUANELI pointed out that this is new legislation, changing the
landscape of the Cleary case. To be fair to the plaintiffs, they
need to provide notice, basically, that one year from the effective
date of this Act, they will be called upon to prove that there are
still unconstitutional conditions. He noted that in at least one
federal circuit, when the prisoner plaintiffs were put in that
position, the court threw out the limitations on injunctions,
saying that the plaintiffs needed adequate time to prepare before
being forced to go into court. Therefore, the department believes
a one-year "notice" is appropriate, as they want the ultimate
arbiter - the supreme court - to uphold whatever decision is made.
Number 2219
REPRESENTATIVE ROKEBERG proposed the possibility of a more rapid
effective date of July 1, for example, noting the many years that
Cleary has been in effect.
Number 2259
MR. LUCKHAUPT advised members:
The plaintiff isn't going to have to come in after one year
under Cleary, necessarily. It just depends upon if the
administration decides to file a motion to terminate or modify
at the end of that one-year period. So, ... these one-year
and two-year periods you're hearing about aren't automatic.
The plaintiffs have to come in and have to renew, unless the
state decides to actually come into court. ... The
administration's got to trust the legislature, to a certain
extent, and the legislature has to trust the executive branch
that they will put the plaintiffs to the test here.
Mr. Guaneli's correct that we tried to tailor this legislation
to make sure we meet the requirements of our supreme court and
the problems that we sometimes run into in the supreme court.
... And we've actually switched positions around a little as
this has progressed. I was a little ... less accommodating of
some of the restrictions that were going in the bill earlier,
and now, once they've been in, I'm also trying to protect the
legislature's interests a little, in regards to maybe the
legislature is putting a little too much faith in the
executive branch to actually bring some of these actions.
MR. LUCKHAUPT said this potentially places the legislature in a
little different position. It is similar to legislative approval
of large leases or purchases by the executive branch, which was put
in after the previous administration's purchase of the "Spam Can"
[Court Plaza Building in Juneau], for example, regarding items that
will impact the state financially several years into the future.
Mr. Luckhaupt noted that these consent decrees have that same
potential, especially if the administration doesn't come into court
after the end of that one-year or two-year period, and make that
move to terminate. "Potentially, these consent decrees can last as
long as Cleary has, if that motion is never made," he added. "And
I just want to make sure the committee understood that that wasn't
automatic."
Number 2377
REPRESENTATIVE MULDER said he generally agrees with Mr. Luckhaupt,
then added, "The reason I've gone along with the allowance here is
it's my understanding, when visiting with Dean [Guaneli], that
we've never really made [a] motion to have it dropped totally,
because first there were some concerns about whether we were in
compliance and, second, to make a motion under Rule 60(b), he felt
that we didn't stand a very good chance of winning. So, it was his
conclusion that ... with this additional statutory ability that
we're granting them, they have far better opportunity to actually
win in court, and they would be far more aggressive at actually
terminating these consent decrees or court orders in the future."
He asked Mr. Guaneli whether that is a fair assessment.
MR. GUANELI affirmed that, adding that he certainly appreciates the
tension and matters of trust among the branches of government. He
stated, "With this kind of legislation, I think that the
legislature is in a much better position to legitimately criticize
an administration that doesn't take full advantage of this kind ...
of legislation. I started out, in my presentation yesterday,
saying the Department of Corrections needs the utmost flexibility
in dealing with ... its responsibilities. And, as Representative
Mulder indicated, ... having to deal with a court monitor who lives
in California - and is, in essence, interfering with the operation
of state facilities and, in particular, the facility in Arizona -
is a problem for the department. ... I think that the intent is to
take advantage of the tools that the legislature gives us."
Number 2447
REPRESENTATIVE ROKEBERG suggested this bill needs a "hot foot"
clause, to ensure that the administration files a timely action
when it has the right to do so.
TAPE 99-47, SIDE B
Number 0001
MR. LUCKHAUPT clarified that he wasn't advocating a particular
position. [Comments not on tape because of tape change.]
REPRESENTATIVE ROKEBERG said as he understands it, however, these
times have been extended, and Mr. Guaneli has counseled the
committee about the need for one-year and two-year periods of
standstill. There is no guarantee here that the administration
will file the appropriate motions and actions at that time, he
pointed out.
Number 0034
REPRESENTATIVE MULDER responded that he is straddling the fence to
ensure that the appropriate attention is given to reality, in terms
of trying to adequately fund and manage the prisons, without having
a consent decree dictate what is or isn't appropriate. He is
trying to balance that against the desire to be successful when
this is appealed to the court. To Representative Rokeberg he said,
"So, I guess I would argue against that right now, only from the
standpoint that if that does become a problem, we can come back in
... and perhaps do the 'hot foot' mechanism that you referred to."
Number 0083
REPRESENTATIVE ROKEBERG said he appreciates that, but Mr.
Luckhaupt's testimony is that there is an implication of funding.
He suggested that it would be ceding their ability as a legislature
to appropriate, by giving it over to the monitor in California.
Representative Rokeberg declared that without some reporting
mechanisms or a tacit agreement, if nothing else, between the
legislature and the administration about how to handle this, he was
really uncomfortable about it. "Every month is very expensive," he
added. "It's a $10-million-a-month nut, plus."
Number 0123
REPRESENTATIVE MULDER agreed that is the current situation, adding,
"We're paying for the consent decree. This would allow us to
basically try and put a time frame or time limit on payment of that
consent decree, to try to rectify it and move on. ... Is it a
perfect solution? No. Is it an improved solution? Probably.
Hopefully."
Number 0146
REPRESENTATIVE KERTTULA noted that in working on procedural aspects
of peoples' rights to go back to the court, they are up against
both due process rights of the parties and separation of powers
issues. She said she has a lot of concern whether this bill will
make it as it is. She offered the opinion that this is modifying
it back, to show that both parties are basically giving up
something. She added, "It's definitely not a perfect solution, but
without this, you're going to run a greater risk of the court
saying, 'You're redoing the whole deal. You had the right to come
in and modify. You're changing parties' rights, and it's
one-sided.'"
REPRESENTATIVE KERTTULA asked Mr. Cooper her question of the
previous day about how the state is doing on overcrowding and what
the numbers are.
Number 0201
ALLEN J. COOPER, Director, Division of Institutions, Department of
Corrections, answered that in 1980, there were about 770 prisoners
in the system. In the early 1980s, there was the "more tough on
crime era," and today there are 4,335 prisoners, a sixfold or 1,031
percent increase. He stated that population drives cost, noting
that corrections is looked upon to be the primary employer in the
nation by the year 2,000. Although the population leveled off
somewhat last year, he projects that there will be 4,500 prisoners
by November 1999, an increase of 200 to 300 inmates.
MR. COOPER said he believes the legislature recognized the
population problem by passing HB 53 the previous year. He stated,
"To think we could bring back 800 prisoners from Arizona as a
result of this would not be possible. We were looking at ways now
to - as Mr. Guaneli indicated - to modify some of our caps and
things that we feel, with the resources we have now, ... do it
safely, on a continuous basis. We're looking at probably 80-plus
beds now. We're trying to go in and work on several ...
institutions. But that's kind of where our counts are headed." He
said he is thankful that it leveled off this past year, which gave
the DOC the ability to start managing with the resources provided
by the legislature, "to put us in the posture we are today."
MR. COOPER referred to Representative Rokeberg's suggested "hot
foot" clause and said, "We have a responsibility, doing Cleary.
I've worked for 24 years in the department. I've been with Cleary
since 1982." Mr. Cooper said that although there had been a lot of
concern about Cleary when it came along, it did several things for
them, as well, such as providing some continuity of operations and
a good classification system. He emphasized that "population
coupled with population" is what has caused today's situation.
Number 0333
REPRESENTATIVE KERTTULA requested an example of how the population
caps under Cleary apply to one institution. She also asked whether
prisoners automatically go elsewhere now, if the levels get high
enough.
MR. COOPER affirmed that, adding that those in the system call it
"chasing caps." He indicated 50 percent of the prisoner population
emanates from the Anchorage Bowl. Cook Inlet Pre-Trial is the only
overcrowded institution right now, and it has been that way for the
past five years. Today, it houses 448 prisoners. Mr. Cooper said
he went through that facility last week, and the overcrowding is
causing it to fray at the edges. They will be implementing other
options to start addressing that next month, he said, including
electronic monitoring coupled with another option.
MR. COOPER explained that people are transferred from the Cook
Inlet Pre-Trial Facility to "Palmer medium" or to Wildwood
Correctional Center. Anytime prisoners are moved around
continually, he has strong concerns about public safety, and it is
an everyday occurrence. Furthermore, it is not cheap, it is hard
of staff, and it is difficult to manage that way. Five years ago,
the average prisoner's sentence at "Palmer medium" was about ten
years, he told members. In contrast, on the Palmer compound today,
with 420 beds, the average stay for a prisoner is 37 days. These
are unsentenced misdemeanants and unsentenced felons. All but two
of the institutions - Spring Creek and Building 10 at Wildwood -
contain unsentenced prisoners. Mr. Cooper pointed out that the DOC
has ten jails and two correctional centers at this time, which he
doesn't believe is healthy.
MR. COOPER restated that HB 53 from the previous year will
certainly help, as will the resources provided to do the job. He
noted that he works closely with Department of Law attorneys. Mr.
Cooper pointed out that the court monitor finds the state to be out
of compliance with only the following: the need for an industry
for females at Hiland, tracking of appeals at Spring Creek and
overcrowding. He emphasized how far the state has come from 1982
in this regard.
Number 0506
REPRESENTATIVE KERTTULA asked Mr. Cooper if he will continue what
he is doing regarding overcrowding, regardless of whether this
legislation passes.
MR. COOPER affirmed that.
Number 0521
CHAIRMAN KOTT asked whether anyone else wished to testify. He
noted that there was one amendment yet to be adopted, as discussed
earlier, but no quorum. He specified that that language would be
inserted on page 4, line 11, after the words "two years," to read,
"unless the court finds and orders that continuation of the relief
is appropriate under the standards set out in subsection (c)."
There now being a quorum, he asked whether there was any objection.
There being none, the amendment was adopted.
Number 0565
REPRESENTATIVE GREEN made a motion to move from committee CSHB 214,
version 1-LS0562\I, Luckhaupt, 4/30/99 [as amended], with
individual recommendations and the accompanying indeterminate
fiscal note. There being no objection, CSHB 214(JUD) moved from
the House Judiciary Standing Committee.
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