Legislature(2005 - 2006)CAPITOL 120

03/16/2005 01:00 PM JUDICIARY

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01:26:30 PM Start
01:27:31 PM Department of Corrections - Containment Model
03:31:53 PM HB103
03:50:00 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Recessed to a call of the Chair --
+ Overview: Dept. of Corrections - TELECONFERENCED
Containment Model
Moved Out of Committee
Scheduled But Not Heard
Scheduled But Not Heard
Bills Previously Heard/Scheduled
HB 103 - CLAIMS AGAINST THE STATE                                                                                             
3:31:53 PM                                                                                                                    
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be  HOUSE BILL  NO. 103,  "An Act  requiring an  actionable claim                                                               
against the state to be tried without a jury."                                                                                  
CHAIR  McGUIRE  noted  that  HB  103 also  has  a  House  Finance                                                               
Committee referral.                                                                                                             
REPRESENTATIVE ANDERSON moved  to report HB 103  out of committee                                                               
with  individual  recommendations  and  the  accompanying  fiscal                                                               
REPRESENTATIVE GARA objected  for the purpose of  discussion.  He                                                               
asked Ms. Voigtlander,  Department of Law, for  a rough estimate,                                                               
encompassing the last  few of years, of the  state's payments for                                                               
the type of tort cases that are being addressed by HB 103.                                                                      
GAIL VOIGTLANDER,  Chief Assistant  Attorney General  - Statewide                                                               
Section  Supervisor,  Torts  and Worker's  Compensation  Section,                                                               
Civil  Division (Anchorage),  Department of  Law (DOL),  said she                                                               
didn't have  that such information available,  but indicated that                                                               
she would  research what those  amounts were for the  last couple                                                               
of years.  She added, "This  bill would also implicate some other                                                               
types of cases, and so I will try  to make a cut as to cases that                                                               
fall within  [AS] 09.50.250,  what that universe  is in  terms of                                                               
state payouts for the last two to three years."                                                                                 
REPRESENTATIVE  GARA opined  that the  bill cuts  both ways  with                                                               
regard to cases  involving the state in that  sometimes the state                                                               
will do  better in front of  a jury and sometimes  the state will                                                               
do better in front of a  judge.  He asked Ms. Voigtlander whether                                                               
she thinks  that the state might  actually do better in  front of                                                               
jury when the case involves a claim brought by a prisoner.                                                                      
MS. VOIGTLANDER said she is  not comfortable venturing an opinion                                                               
on that  issue, though  she is prepared  to answer  factual cases                                                               
about the bill.                                                                                                                 
3:36:18 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG  offered   his  understanding  that  AS                                                               
09.50.250 generally pertains to "non-contractual claims."                                                                       
MS. VOIGTLANDER concurred with his  understanding, but noted that                                                               
some  other types  of cases  would be  affected by  AS 09.50.250,                                                               
such  as certain  employment actions  filed against  the state  -                                                               
like  wrongful   discharge  actions  -  and   some  counterclaims                                                               
pertaining to certain types of condemnation actions.                                                                            
REPRESENTATIVE GRUENBERG  asked whether, if the  bill passes, one                                                               
would be able to bring a  contractual claim against the state and                                                               
have it be heard by a jury, and whether such can be done now.                                                                   
MS.  VOIGTLANDER,   characterizing  her   area  of   practice  as                                                               
isolated, declined to venture a response.                                                                                       
REPRESENTATIVE  GRUENBERG   asked  Ms.  Voigtlander   to  provide                                                               
information regarding "who has requested  jury trials - have they                                                               
been the state or the other party."                                                                                             
MS.  VOIGTLANDER explained  that  such information  would not  be                                                               
available  short of  pulling up  everyone's case,  file by  file,                                                               
because  such  information  is not  collected  into  a  database.                                                               
However, based  on her experience,  just in seeing  the paperwork                                                               
flow in,  she said that  it is the  exception for a  plaintiff to                                                               
not ask for a jury.                                                                                                             
3:39:21 PM                                                                                                                    
REPRESENTATIVE  KOTT  asked  whether  there  is  any  factual  or                                                               
statistical   information  which   shows  that   a  trial-by-jury                                                               
decision is rendered faster than a decision made by a judge.                                                                    
MS. VOIGTLANDER relayed that she  is struggling with an answer to                                                               
that question because the work  in her section almost exclusively                                                               
involves jury trials,  since plaintiffs generally ask  for a jury                                                               
trial,  and  therefore she  doesn't  have  experience with  court                                                               
CHAIR McGUIRE pointed  out that the Alaska  Court System's fiscal                                                               
note  indicates a  potential savings  to the  state because  of a                                                               
reduction in yearly jury costs.                                                                                                 
3:41:04 PM                                                                                                                    
REPRESENTATIVE GARA  offered the  following reasons that  a trial                                                               
by jury is  better than a trial by  a judge:  having 12  - or, in                                                               
some instances, 6  people - together is more likely  to result in                                                               
a  just decision,  since an  individual judge  is no  better than                                                               
individual  jurors  are  at   remembering  facts;  regardless  of                                                               
whether the  case is  against a  private party  or the  state, "a                                                               
victim" has the  right to a trial by his/her  peers; the right to                                                               
a  jury trial  is an  important  right, one  that is  democratic,                                                               
wise, and  works better  than having a  decision rendered  by one                                                               
person.  He added:                                                                                                              
     It's six of one and a  half dozen of the other when you                                                                    
     talk about which  one results in a  bigger verdict, and                                                                    
     I think there  are some plaintiffs who'd  rather have a                                                                    
     trial  in front  of  a  judge.   I  think  if you're  a                                                                    
     prisoner or somebody with a  background that's not very                                                                    
     sympathetic,  you'd rather  have  a trial  in front  of                                                                    
     judge,  not a  jury, and  in  those cases  I think  the                                                                    
     state  would request  a jury  trial, but  ... won't  be                                                                    
     able to under this bill anymore.                                                                                           
REPRESENTATIVE GARA said  that his experience has  shown him that                                                               
as a  judge gets more and  more cases, a judge's  decision can be                                                               
delayed for a  long time - sometimes for months  - whereas a jury                                                               
must make a decision right at  the end of trial, generally within                                                               
one to three days.  He  again expressed a preference for the jury                                                               
trial process.                                                                                                                  
CHAIR McGUIRE  noted that the  procedure that HB 103  proposes to                                                               
institute had been in place in  Alaska prior to 1975, and offered                                                               
her understanding  that such a  procedure has  been characterized                                                               
as more  efficient.   And although  there are  times when  a jury                                                               
trial  is more  appropriate,  she  remarked, it  is  also a  more                                                               
expensive  procedure.   She also  offered her  understanding that                                                               
the procedure  was changed for  the benefit of the  University of                                                               
Alaska,  which,  in University  of  Alaska  v. National  Aircraft                                                             
leasing, Ltd., 536 P.2d 121,  128-29 (Alaska 1975), had asked for                                                             
a jury trial and  been denied.  She remarked that  a lot of other                                                               
states  have a  similar procedure  in place,  and suggested  that                                                               
Representative  Gara's  argument regarding  "six  of  one half  a                                                               
dozen of another"  actually speaks for the bill.   In conclusion,                                                               
she  said she  doesn't think  that  the rights  of Alaskan's  are                                                               
going  to  impaired  greatly  by  the  passage  of  HB  103,  and                                                               
expressed  confidence that  Alaska's judges  will make  the right                                                               
decisions [in cases against the state].                                                                                         
REPRESENTATIVE  GRUENBERG noted  that when  the Magna  Charta was                                                               
signed, one of the most important  rights that was granted to the                                                               
English  people  was the  right  of  a jury  trial.    That is  a                                                               
fundamental right,  he opined, and  a fundamental tenet  of "our"                                                               
system of government.   One of the only areas  in which the right                                                               
of  a jury  trial was  denied, and  which he  characterized as  a                                                               
legal antiquity,  was the  right to sue  "the Crown"  because the                                                               
king can do  no wrong.  But  that's not the way it  should be, he                                                               
argued, because  "the king" can  obviously do wrong and  is found                                                               
to do wrong  every time there's a judgment against  the king - or                                                               
the queen, or the state, or the country.                                                                                        
REPRESENTATIVE  GRUENBERG  offered  his  understanding  that  the                                                               
Eleventh Amendment to the U.S.  Constitution has been interpreted                                                               
as prohibiting  the U.S. Government  from being sued  without its                                                               
consent, adding  that Congress has largely  granted that consent,                                                               
and opined  that this is  why the Alaska State  Constitution says                                                               
that the state can be sued  if the legislature consents, which it                                                               
has  done.   He offered  his  belief that  no one  has sited  any                                                               
instance where  the right  of a  jury trial  has been  granted by                                                               
waiving sovereign immunity and then  subsequently taken away from                                                               
the people.   "This is a very  serious step; I am  unaware of any                                                               
circumstance, anywhere, where the right  of a jury trial has been                                                               
given  and  then  subsequently  denied,  ...  particularly  here,                                                               
without any showing at all that  [the right] has been abused," he                                                               
CHAIR  McGUIRE said  that Representative  Gruenberg's points  are                                                               
well taken,  but suggested that he  is straying a bit  beyond the                                                               
topic of the  bill and into the area of  sovereign immunity.  She                                                               
pointed  out that  when  the  state is  sued,  it  is the  people                                                               
themselves who are  being sued.  She opined that  HB 103 does not                                                               
restrict the  right to sue  the state, rather it  merely proposes                                                               
that when one does sue the state,  the decision will be made by a                                                               
judge, not  a jury; the  bill addresses  the question of  what is                                                               
the more efficient  method of exacting justice in a  way that can                                                               
be met by the state's resources.                                                                                                
REPRESENTATIVE  GRUENBERG  offered   his  belief,  however,  that                                                               
taking away the  right to a jury trial does  restrict one's right                                                               
[to sue the state].                                                                                                             
CHAIR McGUIRE countered, "It doesn't  restrict your right to sue,                                                               
and that's  the area  you were  treading into  in terms  of suing                                                               
'the Crown.'"                                                                                                                   
3:49:26 PM                                                                                                                    
A roll call  vote was taken.   Representatives McGuire, Anderson,                                                               
Kott,  and Dahlstrom  voted in  favor  of reporting  HB 103  from                                                               
committee.  Representatives Gruenberg and Gara voted against it.                                                                
Therefore, HB 103 was reported from the House Judiciary Standing                                                                
Committee by a vote of 4-2.                                                                                                     
CHAIR McGUIRE asked Ms. Voigtlander to forward to the entire                                                                    
committee any additional information she obtains regarding the                                                                  
issues discussed.                                                                                                               
[HB 103 was reported from committee.]                                                                                           

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