Legislature(1997 - 1998)

03/25/1997 08:07 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 HB 200 - SUBPOENA POWER: ADMIN. REG. REVIEW COMMIT                            
 The first order of business to come before the House State Affairs            
 Standing Committee was HB 200, "An Act relating to subpoenas of the           
 Administrative Regulation Review Committee; and providing for an              
 effective date."                                                              
 CHAIR JEANNETTE JAMES, sponsor of HB 200, presented the bill.                 
 CHAIR JAMES asked that the committee members delete from the                  
 sponsor statement the sentence, "Every other similar Legislative              
 Council Committee has the power to force witnesses to testify." It            
 was not a correct statement; there were several other committees              
 that did not have the power as well.                                          
 CHAIR JAMES read the following sponsor statement into the record:             
 "HB 200 gives the Committee the power to subpoena unwilling and/or            
 uncooperative witnesses to Committee hearings.  If the Committee              
 intends to sort fact from fiction we need the tool of subpoena                
 "We are not a democracy as is claimed, we are a regulatory                    
 bureaucracy! `We are from the government, and we are here to help             
 you.'  That statement brings chills to our constituents because the           
 statement that follows will be one dealing with regulations.  The             
 Committee is charged with the task of regulatory oversight, the               
 basic idea is to re-establish a democracy equally balanced between            
 the Executive, Legislative and the Judicial branches of government.           
 "There is no oversight of regulations by the Executive branch,                
 former administrations have tried, but have been unsuccessful.  It            
 is up to us, the Legislative branch to be the overviewer of the               
 regulations promulgated by the Statutes we make.                              
 "The Committee needs certain tools to operate, we have the                    
 statutory power to place witnesses under oath, the power to file              
 perjury charges, the power to require cooperation from public                 
 officials, and the power to annul regulations through statute.                
 "With the power of subpoena our tool kit will be complete.                    
 "If there are any questions please call me, or Walt Wilcox."                  
 Number 0239                                                                   
 REPRESENTATIVE KIM ELTON asked Chair James whether there had been             
 any need so far to subpoena a person.                                         
 Number 0256                                                                   
 CHAIR JAMES replied, "No."  However, some had not responded to the            
 requests.  The committee had not been going for very long either.             
 Number 0304                                                                   
 SARAH FELIX, Assistant Attorney General, Governmental Affairs                 
 Section, Civil Division, Department of Law, was the first person to           
 testify in Juneau.  The division was concerned mainly with the                
 provision of AS 24.20.455 (c) on page 2 - the enforcement of                  
 subpoena by arrest.  In the past, a similar procedure was used and            
 challenged in the 1985 Schultz v. Sundberg court case.                        
 Representative Sundberg claimed a violation of civil rights by                
 arrest and sued the state, as well as a number of individuals,                
 under 42 U.S.C. Sec. 1983.  One case went all the way to the Ninth            
 Circuit Court of Appeals.  Therefore, the division was concerned              
 about the possibility of costly litigation.                                   
 MS. FELIX further explained the division was concerned about the              
 practical problems that could result in the enforcement upon the              
 arrest.  The division imagined that the Sergeant At Arms would need           
 help with the arrest provision.  The sergeant would also probably             
 ask the troopers to enforce the arrest.  The troopers would not               
 have the immunity that the legislative staff would have relying on            
 the qualified executive branch immunity.  The troopers would also             
 probably want a court order before arresting someone.  The next               
 agency involved would probably be Corrections, which would also               
 probably want an order before locking someone up.                             
 MS. FELIX suggested deleting Section 24.20.455 (c) and inserting              
 the following language:                                                       
 "hold public hearings, administer oaths, issue subpoenas, compel              
 the attendance of witnesses and production of papers, books,                  
 accounts, documents, and testimony, and have the deposition of                
 witnesses taken in a manner prescribed by court rule or law for               
 taking dispositions in civil action;"                                         
 MS. FELIX explained the Legislative Council and the Legislative               
 Budget and Audit committees had the same provisions.                          
 Number 0575                                                                   
 REPRESENTATIVE MARK HODGINS asked Ms. Felix how the Office of the             
 Attorney General or the courts did it when they had a subpoena.               
 Was it similar to the provision she suggested adding?                         
 Number 0604                                                                   
 MS. FELIX replied that a subpoena was enforced by the court's                 
 contempt power.  A person would be held in contempt, with the                 
 opportunity to explain to the court why he or she disobeyed the               
 subpoena.  The court ruled based on the excuse.                               
 Number 0632                                                                   
 REPRESENTATIVE HODGINS asked Ms. Felix what the difference was                
 between AS 24.20.455 (c) and the provision that she suggested                 
 Number 0644                                                                   
 MS. FELIX replied that AS 24.20.455 (c) provided for a summary                
 arrest, while the other provision provided for an opportunity to be           
 heard before the person was arrested and taken to prison.                     
 REPRESENTATIVE HODGINS asked Ms. Felix whether it would still have            
 the same compelling power.                                                    
 MS. FELIX replied, "Yes."  There were a number of agencies that               
 issued an administrative subpoena.  It was not to be taken lightly.           
 Number 0702                                                                   
 REPRESENTATIVE HODGINS asked Ms. Felix what would be the                      
 consequences if someone disregarded the provision that she                    
 suggested adding.                                                             
 MS. FELIX replied that a consequence would be the penalties for               
 contempt, such as jail time until the order was obeyed.                       
 REPRESENTATIVE HODGINS asked Ms. Felix whether the process would be           
 at the discretion of the committee.                                           
 MS. FELIX replied it would be at the discretion of the judge and              
 the judicial system.                                                          
 REPRESENTATIVE HODGINS asked Ms. Felix what type of time sequence             
 it would take from finding contempt to compelling the person to               
 talk before the committee, for example.                                       
 Number 0728                                                                   
 MS. FELIX replied that she did not know the time line.  It would              
 depend on the court and its case load.  She would hope that the               
 court would take the short session of the legislature into                    
 Number 0762                                                                   
 REPRESENTATIVE AL VEZEY asked Ms. Felix what the outcome of the               
 Schultz v. Sundberg court case was.                                           
 MS. FELIX replied that the state got off.  The state was found to             
 not be liable.  The legislators received immunity, and the                    
 executive branch employees received qualified immunity.                       
 Number 0790                                                                   
 REPRESENTATIVE VEZEY asked Ms. Felix whether the legislature had              
 the authority to issue a subpoena.                                            
 Number 0797                                                                   
 MS. FELIX replied, "I think so."  She reiterated that the division            
 was not disputing the subpoena but rather the summary of arrest.              
 Number 0863                                                                   
 REPRESENTATIVE ETHAN BERKOWITZ asked Ms. Felix whether the                    
 provision she suggested would keep the subpoena within the due                
 process provisions.                                                           
 MS. FELIX replied, "Yes."  The provision would not allow for                  
 summarily arresting a person without giving him or her a notice and           
 an opportunity to be heard, shielding the legislature from the                
 constitutional claims as in the Schultz v. Sundberg case.                     
 Number 0886                                                                   
 REPRESENTATIVE BERKOWITZ further stated, to answer the earlier                
 question of Representative Hodgins, that when someone was arrested,           
 he or she had to be brought before a judge or a magistrate within             
 a very short period of time.  Generally, that type of proceeding              
 moved quickly.                                                                
 Number 0908                                                                   
 REPRESENTATIVE BERKOWITZ asked Ms. Felix whether she knew what the            
 cost would be associated with the provision she suggested.                    
 Number 0915                                                                   
 MS. FELIX replied, "I do not."  She suggested getting that type of            
 information from the troopers, for example.                                   
 Number 0941                                                                   
 CHAIR JAMES said she hoped there would not be any cost associated             
 and that once given the subpoena power, it would probably not have            
 to be used.  As Chairman of the House State Affairs Standing                  
 Committee, she could move the case over to that committee, where              
 she did have subpoena power.  She believed, however, that the                 
 Administrative Regulation Review Joint Committee should have the              
 same power.                                                                   
 Number 0985                                                                   
 REPRESENTATIVE BERKOWITZ explained that he had issued thousands of            
 subpoenas, and he had wished that the people had paid attention to            
 them, but they generally did not.  There were times when the weight           
 of the law was necessary.                                                     
 Number 1003                                                                   
 CHAIR JAMES replied that when he gave a subpoena, it was under a              
 different type of case law than in the legislature.  The committee            
 would not subpoena anybody outside of the government.  If anybody             
 in the government would refuse, then there would probably be more             
 problems than just refusing the subpoena.                                     
 Number 1029                                                                   
 REPRESENTATIVE BERKOWITZ replied that the subpoena power did not              
 apply to federal employees.                                                   
 CHAIR JAMES said the committee completely worked within the                   
 framework of regulations written by the Administration.  Therefore,           
 the subpoena would be against those that had information or                   
 documents relating to regulations - the Administration.  She did              
 not think the Administration would deny a subpoena.                           
 Number 1084                                                                   
 REPRESENTATIVE ELTON stated that there was nothing that limited the           
 subpoena power.  He imagined that a person subject to regulations,            
 for example, would need to be subpoenaed.                                     
 REPRESENTATIVE ELTON asked Chair James whether the subpoena power             
 that she had was similar to the subpoena power in AS 24.20.201                
 CHAIR JAMES replied that she did not know.  It was the opinion of             
 the leadership that the committee already had the subpoena power.             
 Therefore, the committee chair did not just have the power; he or             
 she needed higher authority as well.                                          
 Number 1169                                                                   
 MS. FELIX replied that AS 24.25.010 referred to the chairman of a             
 committee when authorized to do so by a majority of the membership            
 of the committee and with the concurrence of the president or the             
 speaker, or with the concurrence of the House or the Senate.  The             
 Legislative Council Committee had the same type of subpoena power             
 as in AS 24.20.201 (a)(2).                                                    
 Number 1201                                                                   
 CHAIR JAMES stated that she did not have any objection to the                 
 suggestion made by Ms. Felix.  However, she wanted to discuss it              
 with the drafter.                                                             
 Number 1214                                                                   
 REPRESENTATIVE BERKOWITZ asked Ms. Felix whether she envisioned               
 that judicial services would be serving the subpoenas.                        
 MS. FELIX said probably.  The legislature would probably need some            
 sort of assistance to serve the subpoenas.  It needed to be looked            
 at further, however.                                                          
 Number 1267                                                                   
 CHAIR JAMES announced she would take the suggestions of Ms. Felix             
 to the drafter.  The bill would be held over until Thursday, March            
 27, 1997.                                                                     

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