Legislature(2005 - 2006)CAPITOL 120
02/06/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB172 | |
| SB132 | |
| HB379 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 373 | TELECONFERENCED | |
| + | HB 295 | TELECONFERENCED | |
| += | TELECONFERENCED | ||
| = | SB 132 | ||
| = | SB 172 | ||
| = | HB 379 | ||
SB 132 - HUMAN RIGHTS COMMISSION 2:23:44 PM CHAIR MCGUIRE announced that the next order of business would be SENATE BILL NO. 132, "An Act relating to complaints filed with, investigations, hearings, and orders of, and the interest rate on awards of the State Commission for Human Rights; making conforming amendments; and providing for an effective date." 2:24:28 PM RANDY RUARO, Legislative Liaison, Department of Law, suggested that the committee deal with a pending amendment offered by Representative Gara. REPRESENTATIVE GARA said he will not offer Amendment 5. The committee took an at-ease from 2:26 p.m. to 2:29 p.m. 2:29:36 PM REPRESENTATIVE GARA moved Amendment 6, labeled 24-GS1110\G.1, Kane, 1/18/06, as follows [original punctuation provided]: Page 1, line 2: Delete "and" Insert "providing for attorney fees and costs in cases involving human rights violations;" Page 1, line 3, following "amendments": Insert "; and amending Rule 82, Alaska Rules of Civil Procedure" Page 6, following line 15: Insert a new bill section to read: "* Sec. 11. AS 18.80 is amended by adding a new section to article 2 to read: Sec. 18.80.147. Attorney fees and costs. (a) In an action brought by a person under AS 22.10.020(i), a prevailing plaintiff shall be awarded costs as provided by court rule and full reasonable attorney fees at the prevailing reasonable rate. (b) Unless the action is found to be frivolous, in an action brought by a person under AS 22.10.020(i), a prevailing defendant shall be awarded attorney fees and costs as provided by court rule. If the action is found to be frivolous, the attorney fees to be awarded to the defendant shall be full reasonable attorney fees at the prevailing reasonable rate. (c) In this section, "frivolous" means (1) not reasonably based on evidence or on existing law or a reasonable extension, modification, or reversal of existing law; or (2) brought to harass the defendant or to cause unnecessary delay or needless expense." Renumber the following bill sections accordingly. Page 7, following line 3: Insert a new bill section to read: "* Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to read: INDIRECT COURT RULE AMENDMENT. The provisions of sec. 11 of this Act have the effect of changing Rule 82, Alaska Rules of Civil Procedure, by requiring the award of full reasonable attorney fees in certain cases." Renumber the following bill sections accordingly. Page 7, line 7: Delete "secs. 1 - 13" Insert "secs. 1 - 14" REPRESENTATIVE COGHILL objected. REPRESENTATIVE GARA explained that the Human Rights Commission (HRC) is short-staff, which causes statute of limitations problems. He said the HRC cuts off claims earlier and represents fewer people. He noted that the mission of the HRC is to help people obtain justice if they were a victim of discrimination, "and so the whole idea that we should solve a problem by saying, OK, here's an easier way for you to represent fewer people, doesn't really go to the mission of the HCR." Amendment 6 adds language used in a number of other areas of the law, including consumer protection and landlord/tenant statutes, he said. He explained that if an individual prevails on a valid claim, that person will be entitled to compensation for attorney fees and costs. Currently, victims have difficulty getting an attorney for small cases, he stated. REPRESENTATIVE GARA told the committee that there is a concept in the law called "privatizing the attorney general" that allows a person to get a private attorney and get compensated for attorney fees if he or she prevails. He said it will save the state money, and it finds a remedy for true victims of discrimination. If a case is frivolous, the individual will have to pay for the defendant's costs, he said, creating a disincentive for people to sue with marginal claims. It protects people who are truly victims of discrimination, recognizes that the HRC is short-staffed and protects people against frivolous claims, he concluded. 2:34:32 PM REPRESENTATIVE GRUENBERG discussed the need for a two-thirds majority to change procedural rules and whether or not this amendment actually does that. He said he always thought Rule 82, Alaska Rules of Civil Procedure, was an interpretive rule and not a procedural rule, and thus the legislature would only need a majority to adopt this change. REPRESENTATIVE GARA said that the legislative legal staff put the requirement of a court rule change in the amendment as a note of caution. REPRESENTATIVE GRUENBERG asked if an attorney for the plaintiff would get a contingency fee based on the contingent fee or the Rule 82 fee. REPRESENTATIVE GARA offered his understanding that it is what the court determines is reasonable. REPRESENTATIVE GRUENBERG said that normally these cases are taken on a contingent fee from a plaintiff, and a prevailing reasonable rate indicates an hourly rate. REPRESENTATIVE GARA concurred. CHAIR MCGUIRE asked if the language is identical to the language in consumer protection laws. REPRESENTATIVE GARA said he has a cover letter from the Division of Legal and Research Services saying the language was taken directly from the Unfair Trade Practices Act provisions for attorney fees. 2:38:38 PM REPRESENTATIVE COGHILL asked if "frivolous" has the same meaning in the amendment as in the Unfair Trade Practices Act. REPRESENTATIVE GARA said, "Yes, it would be a claim filed with no good faith basis in factor law." REPRESENTATIVE COGHILL said his concern is that there would be "differing bars" in human rights issues as opposed to labor practices. He added, "I'm just concerned that in human rights, frivolous might have two problems. One is the chilling effect of having a bar that might be higher-I don't know. The other one is that in court, how you would have a subjective case appear under the fair labor standards. So I'm just nervous; I just don't know. And, are we importing a standard that actually applies in the situation that we're trying to apply it?" CHAIR MCGUIRE noted that Rule 11, Federal Rules of Civil Procedures, says that there must be a good faith basis for presenting a case. She said there is already a frivolity element that must be factored in. She added that this is just extending it out, and it is not a new concept. In giving the opportunity to recover reasonable attorney fees, Representative Gara wants to make it clear that that shouldn't be an incentive for people to get counsel. She offered an example wherein someone files a false claim against someone and is simply abusing the system. REPRESENTATIVE COGHILL said labor practice issues are more easily provable because there will be employment and pay records, whereas in human rights, frivolity could be harder to prove. REPRESENTATIVE GARA noted that it really doesn't matter what area of law, frivolous means there were no true facts to support a claim. REPRESENTATIVE COGHILL noted that the bill has timelines and rules for complaining, and now "you get down to my word against your word in these particular cases." REPRESENTATIVE GRUENBERG said there is also Rule 95, Alaska Rules of Civil Procedure, and federal Rule 11 allows sanctions if an attorney signs something that is frivolous. He added that Alaska has gotten a bit away from that because Rule 95 was adopted, which says an attorney can be fined up to $50,000 for filing a frivolous lawsuit. 2:45:18 PM MR. RUARO said there were four reasons to oppose Amendment 6. He said the language doesn't fit the title. The second reason is because Superior Court Judge Collins said the legislature is restricted on enacting attorney fee rules by statute, he stated. REPRESENTATIVE GRUENBERG interjected to say, "I think she said that we didn't do it by a two-thirds vote and have it comply with the rule, but this would cure that problem." MR. RUARO said the other point is he doesn't know that there has been a showing that current Rule 82 fees haven't been adequate in these cases. "I don't know that there is a need for it." REPRESENTATIVE COGHILL asked then why have a Human Rights Commission. "Is it a safety valve or a whole new avenue?" he queried. He said he is not sure if that is what the committee is going to do. He said, "Certainly, I'm not one that thinks that if you're going to have a system of appeal based on your human rights that you wouldn't want to bar a way to go to court. But it seems to me that we've designed a way to go through the Human Rights Commission. So now, if we start another avenue, I'm not too sure that that's the right policy call." He said maybe it is worthwhile to have a recourse for an individual who gets a wrong decision from the HRC. "If they refuse to make a decision, I guess then the question would be what is the recourse to an individual, because I think that's the intention of the amendment," he said. CHAIR MCGUIRE noted that the first approach was to give an individual a year to bring a case. But the HRC repeatedly said there are some legitimate cases that will be "cut off" because the budget isn't enough to support the committee's language that gives an individual a year to file. She said this [amendment] may not be the preferred route but there are human rights violations occurring and the state does not want to make it a priority by committing to it in the budget beyond 180 days. She said the first question to ask is if committee members want to commit to supporting plaintiffs beyond the 180-day limit, and if not, members ought to vote against the amendment and vote to rescind the [provision] that increases the time period to 365 days. She said if members believe in making that time extension, there are only a couple of avenues to solve it. One is to keep it there and provide adequate funding and the second is to do something akin to Amendment 6. She agreed that it is a policy shift, but the same thing is done for consumer protection, for example. REPRESENTATIVE GARA noted that the language is a way to expand access to justice without spending state money. The only other alternative, he stated, was to tell the governor to put more money into the HRC. The governor has decided not to do that. He said people will have the option of going to the HRC or to court. [Those options] are not changing, he said, but an individual will be able to go to court "more feasibly." 2:51:11 PM REPRESENTATIVE GRUENBERG said Mr. Ruaro raised two issues that the committee has not discussed, including the title, which can be solved with a concurrent resolution. With regard to the difficulty in getting counsel, he suggested that Representative Gara speak to that since he has practiced in that area. He noted that he had an equal-pay case and the only reason the case could be carried through was because the standard was full attorney fees on an hourly basis. "So it is very important that we do this," he opined. He spoke to Representative Coghill's question of why have a HCR if Amendment 6 passes. He said the HCR has the authority not to take any case, just like any prosecutor, he said, and that [decision] is non-reviewable. MR. RUARO said Representatives Gruenberg and Gara are speaking from the position of being solo practitioners, and he said he once was an associate in a [law] firm and was a fixed cost to that firm. He said there are firms that will not be burdened with an associate taking on a case. He also opined that employment discrimination is an area with a lot of confusion; it is often a he-said-she-said situation. The HCR dismisses about 65 percent of its cases because there is no substantial evidence of discrimination. He said if the amendment is adopted, then "everyone of those employers who was found not to have done anything wrong, basically, would be subject to a demand letter that says, 'you need to pay now or you're going to be subject to full attorney's fees later.'" It ratchets up the leverage for a settlement, so a lot of employers who did nothing wrong will get one of those letters, he warned. He said Rule 82 provides sufficient recovery for fees currently. 2:55:34 PM REPRESENTATIVE ANDERSON surmised then, that two-thirds of the time there is no merit, but [employers] will get a threatening letter saying they will pay attorney fees and costs. He said he has been in the opposite case in defending the employer. MR. RUARO concurred. CHAIR MCGUIRE asked if the amendment fails, will Mr. Ruaro still push his position of withdrawal of Amendment 3. MR. RUARO explained that he has worked with Representative Anderson on a replacement to Amendment 3, which would take out any reference to a statute of limitations as a set period of time and leave it at the discretion of the HRC as it is now. Since the statute is a function of policy and available resources, it would be best for the HRC to continue to control it. He said the HRC has done it that way for quite a few years. CHAIR MCGUIRE said that really means that you would go back to 180 days. MR. RUARO concurred, but the HRC could review it. The committee took an at-ease from 2:57 p.m. to 2:58 p.m. 2:57:57 PM REPRESENTATIVE GARA remarked that Mr. Ruaro shouldn't have spoken about Representative Gara's law practice. He said he doesn't understand Mr. Ruaro's comment about working for large firms. The reason people can't get representation in employment cases is that Rule 82 says that attorneys get only 20 percent of their fees and costs when they win their case, he noted. A person with a small case won't get paid representation, and that is the whole point of the Consumer Protection Act and labor laws and of this amendment, he stated. "If you have a good case we want you to be able to get your recovery of your attorney's fees so that you can say to an attorney from the outset, 'Look, I don't have a very big case, but if we win you'll get compensated.'" REPRESENTATIVE ANDERSON said Representative Gara does not have statistics to show that people not going to attorneys for such cases. REPRESENTATIVE GARA said that the committee is spending too much time talking about the subject, but he had "a lot of people come to the law firm...with employment cases." He said damages in employment cases tend to be very low. 3:00:56 PM A roll call vote was taken. Representative Gara, Gruenberg, Kott and McGuire voted in favor of Amendment 6. Representatives Coghill, Wilson and Anderson voted against it. Therefore, Amendment 6 carried by a vote of 4-3. REPRESENTATIVE ANDERSON moved to offer Amendment 7 as follows [original punctuation provided]: Page 2, line 3: Delete "new subsections" Insert "a new subsection" Page 2, lines 7-9: Delete all material. REPRESENTATIVE GRUENBERG objected. REPRESENTATIVE ANDERSON explained that Amendment 7 provides a deletion on page 2 "so there is not plural of reference to subsections for lines 4 through 6, related and attached to the meat of the amendment, which is deleting lines 7 through 9 on page 2, which states that a complaint can be filed not later than 180 days. And what that means is that we're taking out a reference in the bill setting a statute of limitations to file a charge through the commission. And it would revert back to what the current regulations state. And my opinion, and the Department of Law's opinion, was that the statute that we have here is really a function of policy and it's better to leave it to the regulations to interpret how many days you have to grieve or to make a complaint. And that that will be evolving and will change relative to the commission and regulatory oversight. And it shouldn't be indelible in statute." He questioned the effects of the last amendment and if Amendment 7 is still necessary. MR. RUARO suggested that Amendment 7 is still necessary. 3:03:29 PM CHAIR MCGUIRE relayed that she supports either concept, and that human rights are very important. She added that she is sympathetic to testimony from the department and the HRC that there aren't enough resources "and there needs to be a reduction in time from what this committee decided, then I am supportive of Representative Gara's policy of allowing some of the folks in the private sector to have an incentive to pick up the work that needs to be done to ensure that we have a good basis of human rights in this state." When people are "sexually discriminated against" or discriminated against based on their gender or skin color, it is sensitive and the tendency, especially for women, is to put it aside and try to work through the issues and put on a brave face, she said. A complaint filed after 180 days does not negate its reality, she added. "It may be that that person tries to work it out, and within a year they realize they can't," she stated. She said her instinct is that "the minute that this committee...adjourns, ...you guys are going to come up with an action plan for how to withdraw the substantive policy of Representative Gara's amendment. And so that when this bill appears on the floor, it's going to not only have that provision out, but it's going to have a reversal of the days, which is unacceptable to me." MR. RUARO noted that with regard to the statute of limitations, he said that one would still have the Equal Employment Opportunity Commission (EEOC) available with a 300-day limit. He said he found out that the two-year statute of limitations for the court system provides access to Rule 100, Alaska Rules of Civil Procedure, which says that a party can ask for mediation and arbitration. He said he thinks there are a lot of different avenues. 3:07:20 PM CHAIR MCGUIRE asked what the basis is for filing a Rule 100 claim. MR. RUARO explained that "basically the party has to desire to have mediation or arbitration occur. I haven't seen a court deny a motion yet. I filed several of them in private practice; they were never denied." CHAIR MCGUIRE said she is not that compelled by the EEOC because she doesn't support making a policy stating that human rights are a federal issue, and the state doesn't need to worry about them. She said she is willing to explore Rule 100. 3:08:14 PM REPRESENTATIVE GRUENBERG said he is not aware of anywhere else in the law where the legislative authority is delegated on a statute of limitations, which is traditionally statutory, to an executive agency. He surmised that that is an unconstitutional delegation of authority. MR. RUARO said he doesn't have a case, but he thinks it has been that way for over 10 years. REPRESENTATIVE GRUENBERG said that would have some weight, but not a lot if it has never been challenged. He is concerned about going on record delegating to the agency. With respect to Rule 100, it is a general mediation, so "why have a human rights commission if you're going to turn these cases all over to general arbitration or mediation?" He said he doesn't know that there's any authority under this to order arbitration without stipulation of the parties. Mediation is nonbinding, he pointed out. REPRESENTATIVE GARA remarked that Mr. Ruaro's reference to Rule 100 bolsters the case for [Amendment 6]. He said a person cannot get mediation unless there is a lawsuit, and that person will not be able to find an attorney to file a lawsuit without the amendment. MR. RUARO disagreed that there is an inability to find attorneys for such cases. He said small cases provide some of the best returns in dollars per hours, based on his own experience. 3:12:22 PM REPRESENTATIVE GARA asked if those were human rights cases. MR. RUARO said no. REPRESENTATIVE GARA contended that human rights cases are very different. 3:12:48 PM A roll call vote was taken. Representative Anderson voted in favor of Amendment 7. Representatives McGuire, Coghill, Wilson, Kott, Gara and Gruenberg voted against it. Therefore, Amendment 7 failed by a vote of 1-6. 3:13:29 PM REPRESENTATIVE GRUENBERG moved to report HCS SB 132(STA), as amended, out of committee with individual recommendations and the accompanying fiscal notes. The committee took an at-ease from 3:14 p.m. to 3:14 p.m. CHAIR MCGUIRE, after determining that there were no objections, announced HCS SB 132(JUD) was reported from the House Judiciary Standing Committee. REPRESENTATIVE GRUENBERG moved that the committee introduce a concurrent resolution approving a title change to reflect the amendments. Hearing no objections, it was so ordered. REPRESENTATIVE GRUENBERG moved to waive the referral of the concurrent resolution to the House Judiciary Standing Committee, "so it can go directly to the floor with the bill." REPRESENTATIVE COGHILL said he thinks it would be referred to the next committee of referral. REPRESENTATIVE GRUENBERG said okay. REPRESENTATIVE ANDERSON noted that if the bill changes, then the House Concurrent Resolution will be meaningless. [HCS SB 132(JUD) was reported from committee.]
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