Legislature(2017 - 2018)GRUENBERG 120
02/22/2017 01:30 PM JUDICIARY
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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. 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.