Legislature(2007 - 2008)CAPITOL 120
01/22/2007 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB69 | |
| HB76 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 7 | TELECONFERENCED | |
| *+ | HB 69 | TELECONFERENCED | |
| *+ | HB 76 | TELECONFERENCED | |
HB 76 - CIVIL LEGAL SERVICES FUND 2:18:45 PM CHAIR RAMRAS announced that the final order of business would be HOUSE BILL NO. 76, "An Act relating to the creation of a civil legal services fund." REPRESENTATIVE DAHLSTROM moved to adopt the proposed committee substitute (CS) for HB 76, Version 25-LS0349\C, Bailey, 1/17/07, as the work draft. There being no objection, Version C was before the committee. CHAIR RAMRAS noted that similar legislation had been considered by the previous legislature but had not made it completely through the process. 2:20:14 PM EMILY STANCLIFF, Staff to Representative Jay Ramras, Alaska State Legislature, on behalf of Representative Ramras, one of the bill's prime sponsors, explained that HB 76 would establish a civil legal services fund into which the Legislature can appropriate the state's share of punitive damage awards - current statute stipulates that 50 percent of punitive damage awards are to be deposited into the state's general fund (GF); would allow the legislature to appropriate money from the civil legal services fund and give it to organizations that provide civil legal services for low-income Alaskans; and would define low income as equal to or less than 125 percent of the most recent federal poverty guidelines for Alaska set by the U.S. Department of Health and Human Services (DHHS). MS. STANCLIFF offered that HB 76 will give low-income Alaskans greater access to legal services; will address the current inadequate funding of organizations that provide legal services; will provide funding for those legal services using punitive damage awards for egregious offenses rather than draining other sources of funding; and will aid in making the Alaska Court System (ACS) more efficient. She elaborated on the latter point by noting that when individuals resort to representing themselves in court it can have the effect of slowing down the judicial process because judges then have to take more time explaining procedure and assisting such individuals with the technical aspects of a court case. She concluded by indicating that it is [the sponsors'] hope that HB 76 will help provide legal services to low-income Alaskans by providing funding for those services. 2:22:19 PM ANDY HARRINGTON, Executive Director, Alaska Legal Services Corporation (ALSC), offered examples of the types of people who might be seeking assistance from the ALSC, adding that they are all people who will not have been charged with a crime and thus won't be appointed an attorney by the courts. Remarking that the ALSC is still inadequately staffed, he characterized those who do work for the ALSC as dedicated, skilled, and woefully underpaid, adding that ALSC staff speak to potential clients, analyze whether what has happened to them is legally justifiable, and, if it isn't, take the necessary steps to try to get the wrong rectified. Also among his staff, he relayed, is a pro bono coordinator who specializes in convincing private attorneys to represent indigent clients once a year on a volunteer basis. MR. HARRINGTON expressed a desire to do something about the fact that his staff is underpaid, and recounted that about 25 years ago the state was appropriating approximately $1.2 million for the ALSC - allowing the ALSC to have about twice as many staff as it now has, and to maintain additional offices in other parts of the state than are maintained now - but the ALSC hasn't received an appropriation from the legislature since 2004 because Governor Murkowski line-item vetoed the fiscal year 2005 (FY 05) proposed legislative appropriation. Furthermore, certain funding previously received from the Legal Services Corporation (LSC) has been eliminated; funding from the Alaska Bar Foundation's Interest on Lawyer Trust Accounts ("IOLTA funds") has decreased; and statutory changes now prohibit ALSC attorneys from receiving attorney fees. MR. HARRINGTON said that when the ALSC is able to represent someone who would otherwise be unrepresented, the ACS is able to do its job more efficiently because judges won't have to spend time explaining procedure and points of law to unrepresented litigants. And although the vast majority of cases the ALSC undertakes involve representing people in state court, federal funding for the ALSC far outweighs state funding. He went on to say: This bill uses high-stakes civil cases to help ... low-income Alaskans who have what may seem like low- stakes case. Although when it's your own paycheck, or when it's you own family shelter, or when it's your own child who's been taken, or when it's your own right to be free from domestic violence and abuse, the stakes don't seem that low. ... This bill is needed because some things that are happening to constituents in your districts and other districts are illegal, things that ... have a legal remedy that they could use to rectify if they knew what that was, and if you give us the tools, we can help with that. Needless to say, I'm in support of the bill, and I appreciate the committee's time and consideration. 2:27:42 PM REPRESENTATIVE GRUENBERG, commenting on similar legislation offered during the previous legislature, asked why the words, ", less the costs of collection, if any, incurred by the state" have been removed in Version C of HB 76. MR. HARRINGTON offered that although during the previous legislature then-Acting Attorney General Nordstrand had said - with regard to that similar legislation - that he didn't want the DOL to lose money because of its efforts to track punitive damage awards, Legislative Legal and Research Services has since outlined in a memorandum dated 12/28/06 why such language might not be needed. REPRESENTATIVE GRUENBERG noted that AS 09.17.020(j) - which is referenced in Section 2 of Version C - says: "(j) If a person receives an award of punitive damages, the court shall require that 50 percent of the award be deposited into the general fund of the state. This subsection does not grant the state the right to file or join a civil action to recover punitive damages." He said he is concerned with the language in that provision which says that the State has no right to intervene in the punitive damage phase of a case; that prohibition seems unfair given that the State will be getting 50 percent of any punitive damage award - the State should have a right to intervene on that point. He pondered whether AS 09.17.020(j) ought to be amended to allow the State to intervene, or, if the money is to go to the ALSC, be amended to allow the ALSC to intervene. MR. HARRINGTON surmised that the prohibition outlined in AS 09.17.020(j) was meant to ensure that intervening in the punitive damage phase of a case does not become a profit-making venture for the State. He offered his belief that under current practice, once a punitive damage award has been entered, the State does take a role in ensuring that the State's share of that award "gets recognized." He mentioned that because AS 09.17.020(j) does not specifically preclude the ALSC from intervening in the punitive damage phase of a case, the ALSC might to be able follow up on Representative Gruenberg's suggestion without there being a change in statute. 2:34:23 PM REPRESENTATIVE SAMUELS noted that HB 76 merely creates an account in the GF - an account which may or may not be funded - and has nothing to do with tort reform. CHAIR RAMRAS agreed, and pointed out that any funds which might be appropriated to the proposed civil legal services fund can't be dedicated and thus there is no actual nexus between those funds and the ALSC. MR. HARRINGTON concurred. REPRESENTATIVE DAHLSTROM sought assurance that any monies which might be appropriated from the proposed civil legal services fund won't be used to defend [alleged] guilty parties, and asked whether the establishment of the fund and the making of appropriations from it will raise questions of entitlement should the legislature either stop making, or decrease the amount of, such appropriations. She also asked whether the ALSC would continue operating even if no monies from the fund were forthcoming. MR. HARRINGTON reiterated that the ALSC doesn't represent people who've been charged with a crime, people who are incarcerated, or people whose cases have no merit. With regard to the question of the state's obligation once the civil legal services fund is established, he said that the ALSC "is not an entitlement program," and explained that the ALSC receives most of its funding from the LSC, and that the ALSC has an ethical responsibility to follow through on all of its ongoing cases. MR. HARRINGTON mentioned that he and the ALSC board of directors understand that the amount of possible appropriations from the proposed fund is apt to fluctuate, and so will not be counting on punitive damages in any given year being a certain amount, particularly given that future legislatures cannot be bound with regard to what appropriation decisions to make. Should there ever be a punitive damage award that results in the State receiving millions of dollars, he would be surprised, he remarked, if the legislature were to give the ALSC all of it; although HB 76 is a vehicle that could be used to provide the ALSC with funding, it is one that the legislature has discretion over from year to year. 2:41:16 PM MR. HARRINGTON, in response to questions, reiterated his understanding that HB 67 won't create an entitlement; said that although the ALSC is allowed to give legal advice to someone who is incarcerated, it is not allowed to actually represent or file a lawsuit for such a person; and explained that the ALSC is a 501(c)(3) nonprofit corporation, and receives funds from the federal government, from some local municipality grants, from some local regional Native nonprofit organizations, and from a private fund raising campaign called the [Robert Hickerson Partners in Justice Campaign]. REPRESENTATIVE COGHILL expressed concern with the language on page 1, lines 8-9, that says, "may appropriate to the fund the amount deposited into the general fund of the state under AS 09.17.020(j)" because that language could be interpreted to mean all of that amount. MR. HARRINGTON concurred with that interpretation, but again pointed out that the legislature has the discretion to appropriate less than that amount should it so choose. REPRESENTATIVE COGHILL suggested altering the aforementioned language to say something along the lines of, "may appropriate to the fund from the amount deposited into the general fund of the state under AS 09.17.020(j)". Such a change would clarify that the legislature does not have to appropriate to the proposed civil legal services fund all of the amount that the State receives from punitive damage awards, particularly given that there might be other entities aside from the ALSC that feel they should receive such funds as well. MR. HARRINGTON, in response to a question, relayed that the ALSC currently has offices in Anchorage, Fairbanks, Juneau, Bethel, Dillingham, Ketchikan, Nome, and Kotzebue. 2:45:58 PM KARA NYQUIST, Executive Director, Alaska Pro Bono Program, Inc (APBP), noted that there are only a few organizations in the state that provide legal services to low-income Alaskans, that there are federal restrictions regarding how LSC monies can be spent, and that the APBP was started in 2000 and was able to serve just under 100 individuals last year on a budget of only $50,000; thus there should be no question of how effective monies from the proposed civil legal services fund could be - regardless of how much or how little that funding turned out to be. Last year the APBP served "some of the overflow" from the ALSC as well as some individuals whom the ALSC could not represent; the APBP locates attorneys who are willing to donate their time to handle cases, and money that [the APBP receives] is used to pay for filing fees, court reporter fees, and other such costs. MS. NYQUIST relayed that the pro bono attorneys in the APBP "place" and monitor the cases, and that the APBP, filing jointly with the ALSC, seeks IOLTA funds. The first year the APBP received over $200,000 of IOLTA funds but that amount is now down to approximately $26,000; additional funds have sometimes also come from attorneys and attorney fees awards. The judicial system is not patient, she remarked, particularly with non- English speaking individuals, and went on to recount some of the situations that have arisen for such individuals and how attorneys in the APBP have aided them. Such individuals, she added, can end up costing "the system" more money if they are not given the legal assistance they need. MR. HARRINGTON, in response to a question, relayed that the Alaska Bar Association (ABA) set up the Alaska Bar Foundation (ABF) which in turn administers the IOLTA. MS. NYQUIST, in response to a question, indicated that the APBP has handled some immigration cases in the past, though now the APBP simply assists immigrants with their civil legal issues such as landlord-tenant issues or family law issues or protective order issues. 2:51:56 PM MR. HARRINGTON offered his understanding that although there are other programs that offer legal aid, most of them don't set income limits on eligibility; HB 76 is designed to focus on just those organizations that set "income and asset ceilings" beneath which people have to fall in order to qualify for representation. CHAIR RAMRAS, in response to questions and comments regarding the definition of "low-income individual", said that as one of the prime sponsors of HB 76, he would prefer to use the definition currently in Version C, that definition being: "an individual with an income equal to or less than 125 percent of the most recent federal poverty guidelines for Alaska set by the United States Department of Health and Human Services". MR. HARRINGTON, in response to a question, relayed that the ALSC handles between 1,700 and 2,000 cases per year, and that those cases are likely to involve domestic violence situations; landlord-tenant disputes; consumer protection issues; federal benefit and Native allotment disputes; issues involving wills, probates, and estates; and bankruptcy and debt collection issues. He added that in each of the aforementioned cases, there could be several people in each household, and thus the ALSC has probably helped between 5,000 and 10,000 people in years when it has undertaken 2,000 cases, for example. If the ALSC were better staffed, he concluded, it could help even more people. CHAIR RAMRAS, in response to a question, opined that the language which has been deleted from Version C - ", less the costs of collection, if any, incurred by the state" - is no longer relevant because "it's very discretionary, what the legislature is going to allocate, if anything, out of punitive damage awards." REPRESENTATIVE GRUENBERG asked whether the [deleted] phrase, "costs of collection" applied only to what he termed "post- judgment collection." MR. HARRINGTON offered his belief that the [deleted phrase] referred to the costs of collection incurred by the State in following up on the State's claim, not the costs incurred by the plaintiff's attorney in either obtaining the award in the first place or in taking collection actions on that award. CHAIR RAMRAS indicated that HB 76 [Version C] would be held over.
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