Legislature(1997 - 1998)
03/25/1997 08:07 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 power. "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 adding. 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 consideration. 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 (a)(2). 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.