Legislature(2017 - 2018)GRUENBERG 120

02/22/2017 01:30 PM JUDICIARY

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Audio Topic
03:18:26 PM Start
03:19:03 PM Confirmation Hearing(s):
04:36:22 PM HB104
04:57:05 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Delayed to 15 Minutes Following LAW --
+ Confirmation Hearing: Attorney General, TELECONFERENCED
Jahna Lindemuth
*+ HB 104 REPEAL COLLECTION OF CIVIL LITIG. INFO TELECONFERENCED
Moved HB 104 Out of Committee
+ HB 69 REPEAL WORKERS' COMP APPEALS COMMISSION TELECONFERENCED
Scheduled but Not Heard
+ Bills Previously Heard/Scheduled TELECONFERENCED
         HB 104-REPEAL COLLECTION OF CIVIL LITIG. INFO                                                                      
                                                                                                                                
4:36:22 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN announced that the  final order of business would be                                                               
HOUSE BILL  NO. 104, "An  Act relating to  collecting information                                                               
about civil litigation by the  Alaska Judicial Council; repealing                                                               
Rule 41(a)(3), Alaska Rules of  Civil Procedure, and Rules 511(c)                                                               
and (e), Alaska  Rules of Appellate Procedure;  and providing for                                                               
an effective date."                                                                                                             
                                                                                                                                
CHAIR  CLAMAN  advised he  would  like  to  move  HB 104  out  of                                                               
committee  today,  in  part because  Susanne  DiPetro,  Executive                                                               
Director for the Alaska Judicial  Council is available to testify                                                               
today in person.                                                                                                                
                                                                                                                                
4:36:59 PM                                                                                                                    
                                                                                                                                
LIZZIE KUBITZ,  Staff, Representative  Matt Claman,  Alaska State                                                               
Legislature,   read  for   the   record   as  follows   [original                                                               
punctuation provided]:                                                                                                          
                                                                                                                                
     For  the record,  my name  is  Lizzie Kubitz  and I  am                                                                    
     staff to  Chair Claman.  Thank you for  the opportunity                                                                    
     to testify.                                                                                                                
     House Bill  104 eliminates  the automatic  reporting of                                                                    
     information  about  civil  case  settlements  currently                                                                    
     required by  law. The  bill follows  the advice  of the                                                                    
     Alaska  Judicial Council,  which  has recommended  that                                                                    
     the legislature eliminate this requirement.                                                                                
                                                                                                                                
     To give  some historical  context: In  1997, responding                                                                    
     to public interest  in tort reform and the  work of the                                                                    
     Governor's Advisory  Task Force  on Civil  Justice, the                                                                    
     legislature  passed tort  reform legislation.  One part                                                                    
     of  the  legislation  responded  to  the  Task  Force's                                                                    
     recommendation that the  Alaska Judicial Council report                                                                    
     on closed civil cases,  using data from forms completed                                                                    
     by  attorneys and  parties in  the  cases. Since  then,                                                                    
     pursuant   to  statute,   the   Judicial  Council   has                                                                    
     collected data provided by  attorneys and litigants and                                                                    
     has produced  three reports.  However, much  more often                                                                    
     than  not,  attorneys  and  litigants  have  failed  to                                                                    
     comply with the reporting requirement.                                                                                     
                                                                                                                                
     In its most recent  report from November 2011, included                                                                    
     in  your  bill  packets, the  Alaska  Judicial  Council                                                                    
     reports that  from January 2001 through  December 2010,                                                                    
     88,873 cases  were resolved in the  Alaska Court system                                                                    
     that  were   subject  to  the   reporting  requirement.                                                                    
     Because  each  case  had  at  least  two  parties,  the                                                                    
     Council should  have received 177,746 or  more reports.                                                                    
     However,  the  Council  only received  23,257  reports.                                                                    
     This  represents  13%  of  the  Council's  conservative                                                                    
     estimate  of  the  number of  reports  it  should  have                                                                    
     received.                                                                                                                  
                                                                                                                                
     The low  rate of  reporting is  the reason  the Council                                                                    
     has not issued  a report since 2011.  An analysis based                                                                    
     on  13%  of potentially  available  data  would not  be                                                                    
     reliable.  Eliminating  the  requirement has  also  has                                                                    
     received  support from  attorneys and  civil litigants,                                                                    
     as the  reporting requirement is onerous  for those who                                                                    
     follow it and unenforceable for those who don't.                                                                           
                                                                                                                                
     The  Alaska Judicial  Council lacks  the authority  and                                                                    
     resources to enforce this  outdated requirement and the                                                                    
     Council renews its  recommendation that the legislature                                                                    
     eliminate it.                                                                                                              
                                                                                                                                
     I'll  now provide  a brief  sectional  analysis of  the                                                                    
     bill.                                                                                                                      
                                                                                                                                
     Section  One repeals  Alaska Rules  of Civil  Procedure                                                                    
     Rule 41(a)(3)  and Alaska Rules of  Appellate Procedure                                                                    
     Rules 511(c) and (e).                                                                                                      
                                                                                                                                
     Section  Two   repeals  AS  09.68.130   which  requires                                                                    
     reporting  of  civil   litigation  information  to  the                                                                    
     Alaska Judicial Council.                                                                                                   
                                                                                                                                
     Section   Three   provides    that   per   the   Alaska                                                                    
     Constitution, the Act will only  take effect if section                                                                    
     one of  the Act  receives the two-thirds  majority vote                                                                    
     of both bodies.                                                                                                            
                                                                                                                                
     And  finally, Section  Four provides  for an  effective                                                                    
     date.                                                                                                                      
                                                                                                                                
     Copies of Rule 41(a)(3), Rules  511 (c) and (e), and AS                                                                    
     09.68.130 have all been included in your bill packets.                                                                     
                                                                                                                                
     Before  I conclude,  I'll mention  for the  record that                                                                    
     Susanne DiPietro, the Executive  Director of the Alaska                                                                    
     Judicial Council,  is present  and available  to answer                                                                    
     questions.                                                                                                                 
                                                                                                                                
     Thank you for the opportunity to testify on House Bill                                                                     
     104.                                                                                                                       
                                                                                                                                
                                                                                                                                
4:40:16 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE REINBOLD  asked whether  there has been  push back                                                               
with regard to this bill.                                                                                                       
                                                                                                                                
MS. KUBITZ advised that to her  knowledge there has not been push                                                               
back,  and  that this  bill  has  received support  from  various                                                               
attorneys.   She pointed out  that attorneys currently  must take                                                               
time out  of their  day to  complete and file  the form,  and the                                                               
client is  usually billed for  their time.   Due to the  fact the                                                               
Alaska  Judicial Council  is receiving  limited data,  it doesn't                                                               
see a purpose in continuing with this requirement, she advised.                                                                 
                                                                                                                                
4:41:29 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KOPP  noted that  while  on  the Alaska  Judicial                                                               
Council in  2007-2008, the information  was seen as  outdated and                                                               
unutilized and  no one was  seeking or collating  the information                                                               
on the council.                                                                                                                 
                                                                                                                                
4:42:09 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN referred  to page 1, line 10  of the bill,                                                               
which read:                                                                                                                     
                                                                                                                                
          CONDITIONAL EFFECT.  This Act takes effect only                                                                       
     if sec. 1 of this  Act receives the two-thirds majority                                                                    
     vote  of  each house  required  by  art. IV,  sec.  15,                                                                    
     Constitution of the State of Alaska.                                                                                       
                                                                                                                                
REPRESENTATIVE EASTMAN advised that he  is not familiar with this                                                               
portion of the constitution, and  asked whether it is Ms. Kubitz'                                                               
understanding that  the constitution  does not permit  the Alaska                                                               
Supreme Court  to make  amendments to these  rules, and  that the                                                               
prerogative belongs solely to the legislative branch.                                                                           
                                                                                                                                
4:42:47 PM                                                                                                                    
                                                                                                                                
MS. KUBITZ  turned to sec. 3,  page 1, lines 8-12,  which read as                                                               
follows:                                                                                                                        
                                                                                                                                
          Sec. 3.  The uncodified law of the State of                                                                         
     Alaska is amended by adding a new section to read:                                                                         
                                                                                                                                
          CONDITIONAL EFFECT.  This Act takes effect only                                                                       
     if sec. 1 of this  Act receives the two-thirds majority                                                                    
     vote  of  each house  required  by  art. IV,  sec.  15,                                                                    
     Constitution of the State of Alaska.                                                                                       
                                                                                                                                
MS. KUBITZ  explained that the Act  takes effect only if  the Act                                                               
receives two-thirds  of a majority  vote of each  house, required                                                               
by art. IV, sec. 15, which read as follows:                                                                                     
                                                                                                                                
     Rule-Making Power                                                                                                          
                                                                                                                                
          The supreme court shall make and promulgate rules                                                                     
     governing the  administration of  all courts.  It shall                                                                    
     make  and  promulgate   rules  governing  practice  and                                                                    
     procedure in  civil and criminal  cases in  all courts.                                                                    
     These rules may  be changed by the  legislature by two-                                                                    
     thirds   vote   of   the  members   elected   to   each                                                                    
     house.[1][2]                                                                                                               
                                                                                                                                
4:43:43 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN surmised  that the  Alaska Supreme  Court                                                               
cannot  do  anything without  the  legislature's  action in  this                                                               
situation.                                                                                                                      
                                                                                                                                
MS. KUBITZ deferred to Susanne DiPetro, Alaska Judicial Council.                                                                
                                                                                                                                
4:44:14 PM                                                                                                                    
                                                                                                                                
SUSANNE  DiPETRO, Executive  Director,  Alaska Judicial  Council,                                                               
Alaska Court System,  in response to Chair Claman, said  she is a                                                               
member  of the  Alaska Bar  Association  (ABA).   In response  to                                                               
Representative Eastman,  she advised  that Alaska Rules  of Civil                                                               
Procedure 41(a)(3),  and the Alaska Rules  of Appellate Procedure                                                               
511(c)  and  (e)  were  promulgated in  order  to  implement  the                                                               
statute  the  legislature passed.    The  court system  has  rule                                                               
making  ability, and  the  Alaska Supreme  Court  can change  its                                                               
rules.   Although,  she explained,  these  particular rules  were                                                               
promulgated  in order  to implement  the statute  which does  not                                                               
provide a  mechanism for  the certification.   The  rule requires                                                               
certification of  attorneys settling a  case, and it is  not part                                                               
of the statute, it is part of the rules, she advised.                                                                           
                                                                                                                                
4:45:35 PM                                                                                                                    
                                                                                                                                
MS. DiPETRO,  in response to  Representative Eastman  question as                                                               
to whether there  is action the Alaska Supreme Court  can take to                                                               
amend  Rule 41,  she speculated  that the  court could  amend the                                                               
rule.                                                                                                                           
                                                                                                                                
REPRESENTATIVE EASTMAN  asked whether  it declined  to do  so and                                                               
that is the reason it is before the legislature.                                                                                
                                                                                                                                
MS. DiPETRO advised she was  unsure she could answer the question                                                               
except to say  that it is customary for the  legislature to do it                                                               
in this manner when a rule  and a statute travel together, or are                                                               
attempting to implement the same purpose.                                                                                       
                                                                                                                                
REPRESENTATIVE KOPP advised  that this court rule  is in response                                                               
to  the legislature's  legislation.   Naturally, he  pointed out,                                                               
the court would  want the legislature to pass the  bill to change                                                               
the rule.   He continued that the court would  not be inclined to                                                               
change  a rule  it  adopted  to a  statute  that the  legislature                                                               
passed, and  the court  would prefer  the legislature  go through                                                               
the process of changing the rules.                                                                                              
                                                                                                                                
4:47:16 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN agreed  with Representative  Kopp, and  referred to                                                               
Representative  Eastman's comment  about "activist  judges."   He                                                               
explained that one  could suggest that if there was  a statute on                                                               
the books and the court  actively decided to repeal the authority                                                               
to collect information, it would  be considered "activist judges"                                                               
by  ignoring  the  intent  of   the  legislature.    Whereas,  he                                                               
explained, if the  legislature both repeals the  rule and repeals                                                               
the statute  collecting the information,  there is  no suggestion                                                               
of activist judges  and the legislature is acting in  its role as                                                               
the legislature.   The bill  combines both repealing  the statute                                                               
and  repealing   the  rule  requiring  lawyers   to  provide  the                                                               
information asked for under the statute, he pointed out.                                                                        
                                                                                                                                
CHAIR CLAMAN opened public testimony on HB 104.                                                                                 
                                                                                                                                
4:48:52 PM                                                                                                                    
                                                                                                                                
KEN JACOBUS,  Attorney, advised that  he is  representing himself                                                               
and the Anchorage Bar Association.                                                                                              
                                                                                                                                
4:49:15 PM                                                                                                                    
                                                                                                                                
The committee took a brief at ease.                                                                                             
                                                                                                                                
4:49:24 PM                                                                                                                    
                                                                                                                                
MR.  JACOBUS continued  that he  discussed this  matter with  the                                                               
court  rules  attorney  and  was   advised  that  the  matter  of                                                               
repealing the  rules would  be presented  to the  Appellate Rules                                                               
Committee and to  the Civil Rules Committee, it  would then defer                                                               
to  the  legislature  because  the  rules  are  implementing  the                                                               
statute.  Therefore, the ball is  in the legislature's court.  He                                                               
commented that  the legislature should  look at the  2011 report,                                                               
in which  the data collected  is not meaningful.   Interestingly,                                                               
he noted, the civil section  of the attorney general's office has                                                               
had  civil  attorneys performing  work  required  to be  reported                                                               
because  AS  09.68.130 does  not  provide  an exception  for  the                                                               
attorney  general's  office.   Therefore,  he  said,  either  the                                                               
attorney  general's office  is not  reporting and  disobeying the                                                               
law,  or it  is  reporting  and wasting  a  lot  of public  money                                                               
providing  this  worthless  data  which  could  be  better  spent                                                               
enforcing the  laws.   He further  commented that  an experienced                                                               
probate attorney in his office  recently represented a civil case                                                               
and was  concerned she was  in trouble  because she did  not know                                                               
she was required to report,  illustrating that some attorneys are                                                               
not even aware  of their duty to report.   He described that this                                                               
statute has  many problems and  needs to  be repealed.   He added                                                               
that  he personally  reports and  considers it  an administrative                                                               
expense,  and that  many  attorneys bill  their  clients for  the                                                               
reporting time.                                                                                                                 
                                                                                                                                
4:53:08 PM                                                                                                                    
                                                                                                                                
SARAH BADTEN, Attorney,  said she has been  attorney in Anchorage                                                               
for approximately ten years,  practices contract enforcement, and                                                               
has  filled out  the forms  for ten  years.   She commented  that                                                               
reporting is a  complete waste of time, waste of  money, and that                                                               
she bills her time, which is  unfair.  The purpose of the statute                                                               
was to collect data based on  tort reform, and to the extent that                                                               
her  reporting does  anything,  which it  doesn't,  she said  she                                                               
skews  the data  because she  does not  practice tort  law.   She                                                               
opined that  the focus should not  be on the fact  that people do                                                               
not fill out  the form, but rather on  the completely unnecessary                                                               
information on the  form because no one is looking  at this data.                                                               
It is  archaic and  she strongly  hopes to  get it  repealed this                                                               
session, she said.                                                                                                              
                                                                                                                                
CHAIR  CLAMAN,  after  ascertaining  no one  wished  to  testify,                                                               
closed public testimony on HB 104.                                                                                              
                                                                                                                                
4:55:15 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  REINBOLD commented  that  she  likes most  repeal                                                               
bills, and that she was thankful  that she asked in the past that                                                               
the legislature have  an entire session on repeal as  "there is a                                                               
lot of stuff that is not  applicable any longer."  She added that                                                               
she does  not object to Chair  Claman bringing this forward  as a                                                               
committee bill.                                                                                                                 
                                                                                                                                
4:56:04 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  FANSLER  moved  to  report HB  104,  Version  30-                                                               
LS0393\D, out  of committee  with individual  recommendations and                                                               
the accompanying fiscal notes.   There being no objection, HB 104                                                               
moved from the House Judiciary Standing Committee.                                                                              

Document Name Date/Time Subjects
Attorney General Appointment-Jahna Lindemuth Bio 2.22.17.pdf HJUD 2/22/2017 1:30:00 PM
HB069 ver O 2.18.17.pdf HJUD 2/22/2017 1:30:00 PM
HJUD 2/27/2017 1:00:00 PM
HJUD 3/10/2017 1:30:00 PM
HJUD 3/20/2017 1:00:00 PM
HB 69
HB069 Sponsor Statement 2.16.17.pdf HJUD 2/22/2017 1:30:00 PM
HJUD 2/27/2017 1:00:00 PM
HJUD 3/10/2017 1:30:00 PM
HJUD 3/20/2017 1:00:00 PM
HB 69
HB069 Summary of Changes ver O 2.24.17.pdf HJUD 2/22/2017 1:30:00 PM
HJUD 2/27/2017 1:00:00 PM
HJUD 3/10/2017 1:30:00 PM
HJUD 3/20/2017 1:00:00 PM
HB 69
HB069 Additional Documents - WCAC cases 2.16.17.pdf HJUD 2/22/2017 1:30:00 PM
HB069 Fiscal Note DOLWD-WCAC 2.16.17.pdf HJUD 2/22/2017 1:30:00 PM
HJUD 3/10/2017 1:30:00 PM
HB 69
HB069 Fiscal Note JUD-ACS 2.16.17.pdf HJUD 2/22/2017 1:30:00 PM
HB 69
HB104 ver D 2.16.17.PDF HJUD 2/22/2017 1:30:00 PM
HB 104
HB104 Sponsor Statement 2.21.17.pdf HJUD 2/22/2017 1:30:00 PM
HB 104
HB104 Supporting Document-Alaska Civil Case Data 1999-2000 2.16.17.pdf HJUD 2/22/2017 1:30:00 PM
HB 104
HB104 Sectional Analysis 2.22.17.pdf HJUD 2/22/2017 1:30:00 PM
HB 104
HB104 Supporting Document-Alaska Civil Case Data 2001-2010 2.16.17.pdf HJUD 2/22/2017 1:30:00 PM
HB 104
HB104 Supporting Document-Civil Case Form 2.16.17.pdf HJUD 2/22/2017 1:30:00 PM
HB 104
HB104 Additional Document-AS Sec. 09.68.130. Collection of settlement information 2.16.17.pdf HJUD 2/22/2017 1:30:00 PM
HB 104
HB104 Additional Document-Rules of Appellate Procedure 511 (c) and (e) 2.16.17.pdf HJUD 2/22/2017 1:30:00 PM
HB 104
HB104 Additional Document-Rules of Civil Procedure Rule 41 (a)(3) 2.16.17.pdf HJUD 2/22/2017 1:30:00 PM
HB 104
HB104 Supporting Document-Letter Kenneth Jacobus 2.18.17.pdf HJUD 2/22/2017 1:30:00 PM
HB 104
HB104 Supporting Document-Letter Michael Schneider 2.22.17.pdf HJUD 2/22/2017 1:30:00 PM
HB 104
HB104 Fiscal Note JUD-AJC 2.17.17.pdf HJUD 2/22/2017 1:30:00 PM
HB 104
HB104 Fiscal Note LAW-CIV 2.17.17.pdf HJUD 2/22/2017 1:30:00 PM
HB 104