Legislature(2003 - 2004)
03/24/2004 01:15 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
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HB 533 - IF UNREAS. AGENCY DELAY, COURT DECIDES Number 1326 CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 533, "An Act relating to the state's administrative procedures and to judicial oversight of administrative matters." Number 1368 REPRESENTATIVE SAMUELS moved to adopt the proposed committee substitute (CS) for HB 533, Version 23-LS1833\D, Bannister, 3/24/04, as the work draft. There being no objection, Version D was before the committee. Number 1381 REPRESENTATIVE BRUCE WEYHRAUCH, Alaska State Legislature, as chair of the House State Affairs Standing Committee, sponsor of HB 533, reviewed the changes encompassed in Version D. On page 2, line 12, the word ["significant" is replaced by the word "immediate"], and the sentence on page 2, lines 14-16, was added. Representative Weyhrauch explained that for those individuals who come before an administrative law judge, the decision is under advisement for some time, occasionally for years or even decades. This can be quite frustrating for those individuals who have a permit or decision pending within the purview of an agency hearing officer but no decision has been reached. This legislation would allow the individual in the aforementioned situation to ask the court to either enjoin the agency to issue a decision sooner rather than later or take some other remedial step to that effect. REPRESENTATIVE WEYHRAUCH pointed out that HB 533requires that the individual notify the agency that if the agency doesn't "move," then it will be taken to court. The individual will request a reason why no ruling is being made. Representative Weyhrauch posed a situation in which an individual has "a simple summary judgment action." An opposition and a reply is filed, and the court then holds oral arguments. At that point, the case is taken under advisement and the record is closed. Six months from the day the case is under advisement, the court has to rule or its checks are withheld. Although delays don't happen in every case, it's frustrating to the public when they do. CHAIR McGUIRE inquired as to the case in which the petitioner continues to file appeals to delay the process because it's not to the petitioner's benefit to obtain an ultimate result. REPRESENTATIVE WEYHRAUCH acknowledged that there are instances in which someone would file appeal and that individual wants a delay and doesn't want a decision to ever be issued. Those individuals don't have to act under this legislation. "There's no requirement that they repair to a court to force a decision maker of an agency," he clarified. With respect to the Commercial Fisheries Entry Commission (CFEC), the longer the pending permit is under advisement, the longer the person has an interim permit and the longer that person can continue to fish. Therefore, it's in the interest of someone with zero points on his/her permit to draw out the case. Representative Weyhrauch reiterated that this legislation doesn't require that the CFEC drag out a decision, rather it's a remedy in cases that are where that is occurring. REPRESENTATIVE SAMUELS offered his belief that in the supreme court, if one justice can't make a decision within six months, the case is passed to the next justice. REPRESENTATIVE WEYHRAUCH said that from everything he has heard, the [judiciary] is trying its best to put forth decisions in a timely manner. Number 1746 REPRESENTATIVE GRUENBERG referred to AS 22.05.140, which says that a judge may not receive a salary warrant until an affidavit is signed specifying that no opinion or decision has been uncompleted or undecided by the justice for a period of more than six months. In the supreme court or the court of appeals, which are multi-judge courts, this means that there must be an opinion circulating within the [six-month] period. Representative Gruenberg said he believes that [withholding checks until opinions or decisions are completed or decided] works. REPRESENTATIVE SAMUELS pointed out that there are justices with work that is over six months old, but who have signed the affidavit and received payment. For those cases, there is no remedy. REPRESENTATIVE GRUENBERG opined that the remedy would be with the Commission on Judicial Conduct because that's filing a false affidavit, which is against the judicial tenets. REPRESENTATIVE GARA agreed that there are times when the judges have waited too long to issue opinions. However, one must keep in mind that these judges have numerous opinions before them to decide. He suggested that the committee hear from the Alaska Court System (ACS) on this issue. REPRESENTATIVE GARA said he believes the legislation is a good idea, although he has a couple of concerns. He pointed out that once the right of unreasonable delay is created, very sophisticated parties are going to try to use this in the administrative process. In order to prevent abuse of the process, Representative Gara suggested the sponsor exempt corporate tax and oil revenue cases from the legislation because, in a billion-dollar case, the parties will attempt to find any possible advantage in order to avoid or delay paying. Representative Gara recalled a case involving the Amerada Hess Corporation, which was a multibillion-dollar case in which parties on both sides did everything possible to obtain an advantage, and said he didn't want to see this happen under HB 533. Number 1929 REPRESENTATIVE GARA predicted that once this legislation passes, many of these motions will be filed in superior court. He predicted that. If this is allowed too liberally, it could delay the court process further. He asked whether the "unreasonable delay" language could be maintained with additional language specifying a minimal amount of time [that would have to pass] before the relief in court could be filed. REPRESENTATIVE WEYHRAUCH indicated that the timeline should be on a case-by-case basis. Furthermore, having exemptions will make it difficult to establish a state policy with regard to which agencies should issue decisions quickly. REPRESENTATIVE GARA acknowledged that perhaps such language isn't necessary. He noted that a provision [in Version D] allows one to request an alternative dispute-resolution process in superior court. REPRESENTATIVE WEYHRAUCH clarified that the intent of the legislation is to provide a method by which to force an agency to issue a decision once it has been pending for an unreasonable time. He went on to say: I think that the key point here is ... the judicial inquiry that's going to have to take place in this kind of thing. When was the case filed before an administrative agency; how complex was the record; how long has the case been under advisement; is this the best forum to re-litigate this case ...; or do we need time for the administrative agency to cook on this; and let's hear from the agency, on some sort of affidavit, that they're diligently working on this. [The judge will say], "I'm going ... to deny this and I'm going to put ... the case under advisement for six months from today, and I want a notice from the parties [regarding where the case is at that point; If it's still ... being delayed at that point, then we'll have another hearing in this court ... to hear from the agency and the parties about the delay, and then I'll make a decision at that point." So I think it's in the reasonable discretion of the superior court judge not to clutter the calendar with these kind of agency appeals, but to ... [let] the agency act on these kind of appeals [in] ... a relatively timely way .... I think that every reasonable judge knows that these agencies are going to have some backlog of cases to deal with, just like they do. REPRESENTATIVE OGG remarked that this provides a nice escape valve. He further remarked that he wishes there was a way to urge the federal judiciary to such quick action. REPRESENTATIVE WEYHRAUCH said he has worked with administrative agencies who say they can't help and specify that the agency has to be asked for an expedited decision, but that doesn't go anywhere. He concluded by stating that he agrees with Representative Ogg. CHAIR McGUIRE recalled dealing with the regulations surrounding shellfish farming. In 1984, the Aquatic Farm Act was adopted; it made it clear that aquatic farming was allowed so long as certain criteria were met. However, in 2002, some issues were still not resolved. Chair McGuire characterized [HB 533] as a good tool, but said she hopes that it doesn't have to be used often. Number 2324 DAVID STANCLIFF, Staff to Senator Gene Therriault, Alaska State Legislature, on behalf of Senator Therriault, the sponsor of SB 333, companion bill to HB 533, informed the committee that he has some statistics that might provide some comfort. He pointed out that [the legislation] is building standards with regard to a reasonable timeframe in order to provide guidance to the courts. There is a diversity of timeframes that range from those that are required by statute, those that are required by federal law, and others that are open-ended. Number 2345 JAN DeYOUNG, Assistant Attorney General, Labor and State Affairs Section, Civil Division (Anchorage), Department of Law (DOL), informed the committee that she handles employment and administrative law issues at the DOL. She noted her previous experience as a hearing officer for the state for seven years. Ms. DeYoung mentioned that the DOL has been working with the bill sponsor to address some of the department's concerns. The DOL is pleased to see some of that work incorporated into [Version D], she remarked, because a chief concern with the original legislation was the absence of notice to the administrative agency that an individual involved in the hearing was going to go to court to seek a remedy for delay. TAPE 04-47, SIDE B Number 2380 MS. DeYOUNG relayed, however, that the DOL had also recommended a minimum of 30 days before the individual could go to court after providing notice; that 30-day timeframe would allow the agency the opportunity to do respond to the concern and to discover the particular harm being caused to the individual by the delay in the hearing. She pointed out that the judicial process isn't going to be fast, so if a remedy could be obtained within 30 days, the individual would probably fair much better than through assistance from the court. Ms. DeYoung said she doesn't believe the 15 days specified in Version D is enough time to allow the agency to "clean house"; the [15-day timeframe] will be a problem, particularly for those agencies whose decision makers are volunteers on boards and commissions. In the aforementioned situation, it could simply take the entire 15 days to get in touch with and poll the members. MS. DeYOUNG reiterated the DOL's appreciation for the notice provision, as well as for the change in language from "significant" to "immediate" because it will provide guidance with regard to what might be required for the courts to intervene. Number 2273 MS. DeYOUNG then turned to the actual remedies [on page 2, lines 20-25] that the judge would be able to award if it appeared that there was unreasonable delay. Enjoining the administrative proceeding and determining the matter would be unusual for the court to do, and it remains unclear how the court would substitute itself for the agency. She questioned what procedures the court would follow if there is already a hearing. In many cases, the courts don't have the power to do some of the things agencies do. MS. DeYOUNG turned to the ability of the judge to order an administrative matter to be handled by another form of dispute resolution. Normally, alternate dispute resolution is voluntary. Furthermore, parties often agree to share the expense when there is agreement to proceed with an alternate form of dispute resolution. She inquired as to how a compulsory alternate dispute resolution would actually work and who would bear the expense of it. MS. DeYOUNG stated that there are already other opportunities, at least for some administrative agencies, to address concerns about delay. Therefore, she said, the DOL questions possible duplication and inconsistencies with some of those remedies. For example, the administrative procedure that provides the superior court the authority to enjoin an administrative action beyond the scope of the agency's administrative powers also has the ability to order the administrative agency to act or initiate action when it's withholding that action. At least for Administrative Procedure Act (APA) agencies, there is some recourse already in statute to address some of the concerns raised. For those agencies not subject to the APA, statute has provisions addressing delay and undue delay. Therefore, it would be ideal if this legislation could coordinate [with those statutes] in order to make sure that the remedies fit together without overlap. MS. DeYOUNG, recalling an earlier comment that it's not always in the interest of an individual or a non-government party for the proceeding to be decided quickly, she said she found it interesting to note that this legislation is limited to non- government parties, because state and political subdivisions do appear as parties before state agencies. Ms. DeYoung expressed her appreciation to the sponsor and the committee. Number 2098 REPRESENTATIVE GRUENBERG offered his belief that legislation [on page 2, line 31, through page 3, line 3] changes the Alaska Rules of Appellate Procedure because it makes the judicial decision not to issue an order and keeps the proceeding in the administrative agency a final "appealable" order. The aforementioned will have a major impact on the practice of appellate law in so far as this involves appeals from administrative agencies. He suggested that if this provision [necessitates] an amendment to one of the appellate rules, the bill ought to be held over in order to obtain information on this matter from someone practicing in this area. Representative Gruenberg posited that the real question is: What is a final, "appealable" order from an administrative agency? MR. STANCLIFF noted his appreciation for the DOL's suggestions. He explained that the 15-day limit is based on the fact that with most administrative communications with the public, the agency reserves 30 days and requires the public to respond within 15 days. In a memorandum laying out concerns, it was brought out that it shouldn't take an agency 30 days to agree to work on a matter once a party has approached the agency saying it will exercise this option if [no action is taken]. He agreed that the language change from ["significant"] to "immediate" is a good change. Mr. Stancliff said, "On some of the other issues, we don't think that the court system will have a problem interpreting how they want to deal with the dispute at hand." He remarked that Mr. Wooliver testified in a Senate committee that in most cases, it's anticipated that the courts are simply going to say they agree that it's taking a long time, and ask the agency to hurry things up. MR. STANCLIFF opined that knowing this legislation is in place will change the way agencies do business. Regarding a possible court rule change, he said that the drafters were instructed to not include anything in the bill that would require a court rule change. CHAIR McGUIRE asked if the 15-day standard to which Mr. Stancliff referred was 15 business days or just 15 days. MR. STANCLIFF explained that the 15 days would begin on the day that the envelope goes into the postal system. He relayed his belief that [Version D] met in the middle with the DOL and met its primary goals in this compromise, but acknowledged that it's the committee's prerogative to choose to go further. Number 1854 CHAIR McGUIRE asked whether there is any concern that once notice is given, there could be a threat of retribution. MR. STANCLIFF said he hopes such wouldn't occur. He also said that he could see how 30 days could allow the department to prepare a case, knowing it was going to court. He said it would also allow time to poll the boards and commissions, though in today's electronic world, 30 days seems more than adequate. REPRESENTATIVE GARA opined that if the intent is to send a message to the agency to obtain a decision, then a 15-day limit would probably back the agency into a corner. He pondered whether 30 days would, in a more complex case, provide time for the agency to issue a decision. MR. STANCLIFF acknowledged that to be a consideration. REPRESENTATIVE GRUENBERG noted that Rule 42(c)(3) of the Alaska Rules of Civil Procedure reads in part: Notice of change of judge is timely if filed before the commencement of trial and within five days after notice that the case has been assigned to a specific judge. REPRESENTATIVE GRUENBERG recalled that the courts have ruled that a person looses his/her right if he/she hasn't actually filed the document in court on that date. Therefore, it's not enough to put it in the mail on that date. This legislation refers to providing the state agency written notice, which he pointed out may be read as having filed the document with the agency on that date. This is a very ambiguous term, he said. Therefore, if the intent is to have mailed the [document], then that should be specified so that there is no question. REPRESENTATIVE GRUENBERG referred to Mr. Stancliff's testimony that there is no intent to impact the court rules. He offered his belief that the language on page 2, line 31, through page 3, line 3, seems problematic because it may be saying, "appealing the failure of the court to provide relief". Therefore, the language, "as if the person had not filed a petition" is meaningless because the appeal is occurring because of a decision by the superior court. Number 1634 REPRESENTATIVE OGG said the language on page 2, line 31, through page 3, line 3, seems to say that if the superior court decides the party isn't eligible for judicial relief under subsection (a) of Section 2, then the party has the right to continue the administrative procedure and make any other appeal it has to the court. He surmised that Representative Gruenberg is saying that if the superior court makes a decision that is improper under this statute, then the party would also have the right to take the superior court decision through the [supreme] court route. He emphasized that [the party] isn't denied anything, and therefore he finds the language to be clear. REPRESENTATIVE GRUENBERG highlighted the use of the term "right of appeal", and said, "You wouldn't necessarily be taking a right of appeal from that, you'd be taking a petition for a review." The decision of the superior court to allow the administrative agency to go forward isn't a final decision, and therefore "you can't quote appeal from that, you can only take a petition for review," he added. MR. STANCLIFF offered to research this issue, and noted that he is open to a better way of achieving the earlier-stated intent. [HB 533, Version D, was held over.]
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