Legislature(2003 - 2004)
05/06/2004 09:08 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
SB 354-HUMAN RIGHTS COMMISSION PROCEDURES Number 1749 CHAIR WEYHRAUCH announced that the last order of business was CS FOR SENATE BILL NO. 354(STA) am(efd fld), "An Act relating to complaints filed with, and investigations, hearings, and orders of, the State Commission for Human Rights; and making conforming amendments." CHAIR WEYHRAUCH reminded the committee that the motion to adopt Amendment 2 on May 5, 2004, had been left pending in order to wait for response from Lisa Fitzpatrick, Human Rights Commission, to questions from the committee. [Amendment 2 would delete paragraphs (4), (6), (8), and (9), on page 3, lines 2, 5, 7, and 8, and renumber accordingly.] Number 1785 LISA FITZPATRICK, Chair, Human Rights Commission, Office of the Governor, responding to the committee's questions on behalf of the commission, indicated that the commission is concerned about leaving in language [on page 3, paragraphs (6) and (9)]. Paragraph (6) read: "(6) a hearing will not represent the best use of commission resources;". Paragraph (9) read: "(9) proceeding to a hearing will not serve the public interest." She explained that the commission is concerned that its caseload is becoming overwhelming again, to the point of backlog. She offered an example where an individual may only be entitled to a nominal amount of relief and it may not be in the public interest to proceed to a hearing on a case like that. She said the commission would like some latitude to exercise some discretion in the degree to which a caseload is worked, in order to "be successful in housekeeping the caseload." MS. FITZPATRICK, in response to a request for clarification from Representative Seaton, said the commission would like [paragraph] (6) and either [paragraphs] (8) or (9) [on page 3] to remain in the bill. Number 1970 SCOTT J. NORDSTRAND, Deputy Attorney General, Civil Division, Office of the Attorney General, Department of Law, in response to a question from Representative Gruenberg as to whether he sees any benefit in keeping both [paragraphs] (6) and (9), answered that the department would defer to the commission on what it wants in terms of its prosecutorial discretion. He stated that the department agrees with the commission that "the necessity of number (8) is very important." Number 1980 CHAIR WEYHRAUCH directed attention to Amendment 2 and clarified that the committee is faced with deleting [paragraph] (4), [and is considering] leaving in [paragraph] (8). He said, "Then the committee has a policy decision to make on whether [to] leave in [paragraphs] (6) and (9)." Number 1995 REPRESENTATIVE GRUENBERG moved [Amendment 1] to Amendment 2, to delete from Amendment 2, [paragraph] (8). He explained that that would keep [paragraph] (8) in the bill. CHAIR WEYHRAUCH offered his understanding that by leaving in [paragraph] (8) - which read, "(8) the probability of success of the complaint on the merits is low; or" - the concern is that a prejudgment would be made without really hearing the alternative side to the story. REPRESENTATIVE GRUENBERG interjected, "No, that's not it at all." CHAIR WEYHRAUCH clarified that that was a concern that had been stated by a previous testifier. REPRESENTATIVE GRUENBERG stated: Any litigator needs to weigh the merits of their case, and if they feel they have a very low probability of success, they definitely need to have the discretion not to pursue it or, if they're a defendant, to settle the matter. This is the heart of being an attorney. It's bad policy to force litigation when there's no chance of success; that's just not good. CHAIR WEYHRAUCH offered his understanding that the executive director would determine the probability of success of the complainants, based on merits. REPRESENTATIVE GRUENBERG responded, "I would hope ... that this is really a form of litigation, and it may be a legal question, it may be that the facts are weak. And ... if it's a legal question I assume the commission director would be getting advice from the assistant attorney general." Number 2083 REPRESENTATIVE SEATON told Chair Weyhrauch: As the bill's originally there, I agreed with you, but now that we've amended it so that there has to be ... concurrence of the commission, I think that we've taken care of the arbitrariness of an executive director. So, there's got to be that concurrence. So, if ... the facts were being ... misjudged, the commission could say, "No, we need to take a look at this anyway." So, I think I'm not uncomfortable leaving that one in with the previous amendment. Number 2140 CHAIR WEYHRAUCH clarified that [Amendment 1] to Amendment 2 would delete [paragraph] (8) from Amendment 2. He asked if there was any objection to Amendment 1 to Amendment 2. There being none, it was so ordered. CHAIR WEYHRAUCH stated that the question before the committee now was whether to delete [paragraph] (6) or (9). Number 2150 REPRESENTATIVE SEATON noted that paragraphs (6) and (9) have subtle differences; the former addresses finance, while the latter addresses the public interest. He suggested that they both be removed from Amendment 2, thereby leaving them in the bill. Number 2170 REPRESENTATIVE BERKOWITZ stated his preference to leave both paragraphs (6) and (9) in [Amendment 2]. He noted that the cases in question are those brought by an individual; therefore, there could conceivable be instances where the public interest is marginally served. Having been a prosecutor who has dismissed cases because they have been too expensive, he said that doing so is something that must be noted. He indicated that if he had to pick one of the paragraphs to delete from Amendment 2, it would be [paragraph] (6). CHAIR WEYHRAUCH suggested combining [paragraphs] (6) and (9) with an "or". REPRESENTATIVE GRUENBERG said he would like to keep [paragraph] (6) in the bill [thus removing it from Amendment 2] for the same reason Representative Berkowitz just stated. He said he would like to further discuss whether to retain or delete [paragraph] (9). He asked if the two paragraphs could be addressed one at a time. Number 2244 REPRESENTATIVE HOLM concurred with Representative Seaton that there is oversight by the commission. He said, "It would appear to me you'd want to keep this in so that you wouldn't - as Representative Berkowitz says - ... have cases where it would be so terribly [expensive] you couldn't afford to do them." He noted, "The State of Alaska - we don't print the money; the [federal government] prints the money ...." REPRESENTATIVE GRUENBERG [moved to adopt Amendment 2 to Amendment 2], to delete "(6)". CHAIR WEYHRAUCH asked if there was any objection to Amendment 2 to Amendment 2. [No objection was stated and Amendment 2 to Amendment 2 was treated as adopted.] Number 2305 REPRESENTATIVE GRUENBERG said he would like at least one example of the kind of case that would fall under the category of [paragraph (9)]. Number 2317 MR. NORDSTRAND said he thinks the commission would be in a better position to talk about examples of cases. He said he thinks the administration would be comfortable in keeping either [paragraph] (6) or (9). He said if [paragraph] (6) is more specific and therefore "more palatable," that would be acceptable. He stated, "There may be circumstances ... - and I don't have an example for you - where in the public interest a case should be dismissed. And it might be easy to characterize it as a resource issue, and it might be better to [require] them ... to say, 'Yes, it is, in fact, in the public interest, and here's why.'" REPRESENTATIVE BERKOWITZ asked, "Why was this section drafted in there?" MR. NORDSTRAND answered that the Department of Law tried to come up with a list that made sense, in terms of what discretion should be exercised. He noted that some original language said that [cases] may be dismissed for administrative convenience. He said that language was problematic for the Senate and was removed. He explained that there was some thought that there shouldn't be limits, and an effort was made to find "some description of discretion that we could be comfortable with." REPRESENTATIVE GRUENBERG asked Ms. Fitzpatrick for an example of "something that would fall in that category [that] wouldn't fall in some other category." TAPE 04-80, SIDE A Number 2378 MS. FITZPATRICK offered an example where there is no monetary loss to the individual but the situation has been remediated. She said that might be a situation that could conceivably fall under the ambit of [paragraph] 9. REPRESENTATIVE GRUENBERG said that satisfies him. He asked Representative Berkowitz for his feedback. Number 2324 REPRESENTATIVE BERKOWITZ responded: When you are making a prosecutorial decision, I think it's fundamentally incompatible to smith individual justice, which is what we do in our justice system, ... taking a step back and saying, "Well, how does this fit in the best interest of the system?" I can think of a circumstance ..., for example, where someone has been horribly discriminated against by an institution that's vitally important to the state. And what do [we] say to that person? "Oh no, we're not going to pursue your case, because it might bring injury to an institution that's of vital importance to the state." And so, ... we're going to deny the individual justice, because the state's best interests aren't served. So, I think deletion of [paragraph] 9 from the bill is appropriate. MR. NORDSTRAND reiterated that the department will support the commission's position. Number 2274 REPRESENTATIVE COGHILL asked, "If we delete this [paragraph] out, would it take away the discretion for that very scenario that the commissioner brought before us?" He indicated that what is being talked about is "a dismissal without prejudice." He said, "I understand the other extremity of the argument, but there's also a place where satisfaction has been brought and we're still compelled to take action." He indicated that he wouldn't worry about deleting the language if he had comfort from the commissioner that the discretion would still be in place. Number 2213 CHAIR WEYHRAUCH clarified that the previously stated idea to delete paragraph (9) from Amendment 2 would be called Amendment 3 to Amendment 2. He asked if there was any objection to Amendment 3 to Amendment 2. REPRESENTATIVE COGHILL responded: Only with one caveat that if we keep the wording of [paragraph] (6) in there, that it's with the understanding that, if there is remedy found in ... the circumstances given that that's what that applies to. So, I won't object. REPRESENTATIVE GRUENBERG said, "I think that's the legislative history." CHAIR WEYHRAUCH asked again if there was any objection to Amendment 3 to Amendment 2. Number 2176 REPRESENTATIVE BERKOWITZ objected. Number 2165 A roll call vote was taken. Representatives Holm, Coghill, and Lynn voted in favor of Amendment 3 to Amendment 2. Representatives Berkowitz, Gruenberg, and Weyhrauch voted against it. Therefore, Amendment 3 to Amendment 2 failed by a vote of 3-3. Number 2132 CHAIR WEYHRAUCH asked if there was objection to adopting Amendment 2, as amended. [The objection to Amendment 2, without amendments, originally stated by Representative Holm during the previous hearing on SB 354, on May 5, 2004, was treated as withdrawn.] There being no objection to Amendment 2, as amended, it was so ordered.
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