Legislature(2005 - 2006)CAPITOL 106

03/03/2005 08:00 AM STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Recessed to a call of the Chair --
*+ HJR 7 CONST AM: SEC. OF STATE REFERENCES TELECONFERENCED
Moved Out of Committee
+= HB 48 EXPENDITURE FOR CAPITOL CONSTRUCTION TELECONFERENCED
Heard & Held
*+ HB 103 CLAIMS AGAINST THE STATE TELECONFERENCED
Moved Out of Committee
*+ HB 127 PFD:PEACE CORPS/DIPLOMAT/SANCTIONS TELECONFERENCED
Heard & Held
Bills Previously Heard/Scheduled
HB 103-CLAIMS AGAINST THE STATE                                                                                               
                                                                                                                                
8:36:22 AM                                                                                                                    
                                                                                                                                
CHAIR SEATON announced that the  next order of business was HOUSE                                                               
BILL NO. 103,  "An Act requiring an actionable  claim against the                                                               
state to be tried without a jury."                                                                                              
                                                                                                                                
8:36:23 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MIKE  KELLY, Alaska State Legislature,  as sponsor                                                               
of HB  103, noted  that the proposed  legislation would  change a                                                               
state law  back to its  original form, wherein cases  against the                                                               
state were  tried by a  judge, rather than a  jury.  He  said the                                                               
state has  a right to  determine how it will  be sued.   He noted                                                               
that in [1975],  at the request of the University  of Alaska, the                                                               
original  law was  changed to  provide for  jury trials  when the                                                               
state was  sued.  He  opined that the use  of a judge  for trials                                                               
against  the state  would be  more appropriate,  and he  said the                                                               
chief council  of the  university has been  contacted and  has no                                                               
objection to [HB 103].                                                                                                          
                                                                                                                                
8:38:07 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLY said  some of the problems  that have arisen                                                               
from  the current  law are  that  the state  is seen  as a  "deep                                                               
pocket"  and, thus,  suits against  the state  may be  taken more                                                               
casually than  suits between  parties other than  the state.   He                                                               
said HB  103 would  not limit  access to  the judicial  system or                                                               
limit the  right to  appeal.   He stated his  belief that  HB 103                                                               
would  provide  adequate  protections   to  those  who  would  be                                                               
aggrieved against  the state.   Furthermore, he said  he believes                                                               
the  proposed   legislation  would  reduce  costs   and  increase                                                               
efficiency of the state's court  system, while protecting against                                                               
awards by juries that seem "not to pass the laugh test."                                                                        
                                                                                                                                
8:39:43 AM                                                                                                                    
                                                                                                                                
HEATH HILYARD,  Staff to Representative Mike  Kelly, Alaska State                                                               
Legislature,   on  behalf   of  Representative   Kelly,  sponsor,                                                               
directed  attention  to  a document  included  in  the  committee                                                               
packet labeled, "Immunity."  He noted  that the first page of the                                                               
document  addresses sovereign  immunity,  while the  rest of  the                                                               
document  includes other  types of  immunities not  pertaining to                                                               
the bill.                                                                                                                       
                                                                                                                                
8:41:49 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   KELLY,   in   response  to   a   question   from                                                               
Representative Gruenberg,  said he  thinks that  sometimes judges                                                               
award  greater liability  and  more  significant recovery,  while                                                               
other times juries do so.                                                                                                       
                                                                                                                                
8:42:14 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  stated his  understanding that  in many                                                               
cases people prefer to go to  a judge rather than a jury, because                                                               
juries,  in many  cases,  tend to  render  smaller verdicts  than                                                               
judges.                                                                                                                         
                                                                                                                                
8:43:41 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLY  said he thinks the  heart of HB 103  is the                                                               
issue of sovereign immunity.                                                                                                    
                                                                                                                                
8:44:40 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG remarked  that  it's tougher  to get  a                                                               
verdict in  a jury trial  than in a judge  trial.  He  said there                                                               
are lots  of strategic  issues regarding  when to  go to  a judge                                                               
versus a jury.  He noted  that some of those issues are mentioned                                                               
on the  second page of the  state's fiscal note [included  in the                                                               
committee packet].                                                                                                              
                                                                                                                                
8:45:57 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLY responded that he  has been visited by trial                                                               
lawyers  in  the state,  and  they  have  remained neutral.    He                                                               
reiterated that  the heart of HB  103 is to protect  the state in                                                               
jurisdictions  where  "this  may  have   been  a  problem."    He                                                               
mentioned aviation  and search and  rescue.  He noted  that there                                                               
is a handout  [included in the committee  packet] showing samples                                                               
of jury awards in four different cases.                                                                                         
                                                                                                                                
8:47:10 AM                                                                                                                    
                                                                                                                                
ROGER GAY,  testifying on behalf  of himself, told  the committee                                                               
that he  is from  Big Lake,  Alaska.   He said,  "If you  let the                                                               
state  decide  in  favor  of  the state,  you  will  forfeit  the                                                               
presumption  of fairness."   He  stated his  belief that  if "the                                                               
Miller Reach  fire" had been  tried by  a judge, the  state would                                                               
not have prevailed.   He said, "The jury did not  seem to be able                                                               
to separate their feelings of  support for the fire fighters from                                                               
the obvious incompetence  of the state's handling  of the fires."                                                               
He posited  that if the committee  is trying to "tilt  the scales                                                               
of  justice in  favor  of  the state,"  it  might  be better  off                                                               
letting the jury  make the decisions.  Mr. Gay  concluded that HB
103 would not benefit the state.                                                                                                
                                                                                                                                
8:48:49 AM                                                                                                                    
                                                                                                                                
DOUG  WOOLIVER,  Administrative Attorney,  Administrative  Staff,                                                               
Office of the Administrative Director,  Alaska Court System, told                                                               
the committee that he worked  together with Gail Voigtlander from                                                               
the  Department of  Law (DOL)  to figure  out that  there are  an                                                               
estimated  four  jury  trials  a   year  where  the  state  is  a                                                               
defendant, and each  of those trials costs an  average of $4,000.                                                               
He noted that that money would be  saved if the trial had been in                                                               
front of a  judge.  Mr. Wooliver emphasized that  the court has a                                                               
decades-old tradition  of not supporting or  opposing legislation                                                               
and does not support or oppose HB  103.  He said he merely wanted                                                               
to explain the fiscal note.                                                                                                     
                                                                                                                                
8:50:49 AM                                                                                                                    
                                                                                                                                
MR. WOLVER, in response to  a question from Representative Gatto,                                                               
explained that the  cost of a jury trial is  explained in part by                                                               
the fact that jury trials  typically take longer than court-tried                                                               
trials.  He said the big savings  is not getting rid of time, but                                                               
getting rid of the jury fees.                                                                                                   
                                                                                                                                
8:53:48 AM                                                                                                                    
                                                                                                                                
CHAIR  SEATON, in  response  to  Representative Gruenberg,  asked                                                               
that questions  regarding the detailed interactions  of the court                                                               
be taken up in the House Judiciary Standing Committee.                                                                          
                                                                                                                                
8:54:37 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GATTO suggested  that [HB 103] would  put a single                                                               
person in the position of being "judge, juror, and executioner."                                                                
                                                                                                                                
8:55:06 AM                                                                                                                    
                                                                                                                                
MR. WOOLIVER  said he supposes  it would, but  judge-tried trials                                                               
are a  regular part of  the system.  He  said, "The judge  is the                                                               
fact finder in those cases, as opposed to a jury."                                                                              
                                                                                                                                
8:55:34 AM                                                                                                                    
                                                                                                                                
MR.  WOOLIVER, in  response to  a  request from  Chair Seaton  to                                                               
clarify  what an  actionable claim  against the  state would  be,                                                               
said [HB  103] would cover  civil claims  where the state  is the                                                               
defendant.                                                                                                                      
                                                                                                                                
8:55:52 AM                                                                                                                    
                                                                                                                                
CHAIR SEATON closed public testimony.                                                                                           
                                                                                                                                
8:56:32 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG said he was  practicing law when the law                                                               
was  changed in  [1975],  and  some cases  were  better tried  by                                                               
judges, while others  were better before juries.   He recommended                                                               
allowing the decision to be made on a case-by-case basis.                                                                       
                                                                                                                                
8:58:35 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARDNER  recommended being careful in  reading the                                                               
previously mentioned  sample jury  awards, because  the specifics                                                               
of the case are not provided.                                                                                                   
                                                                                                                                
8:59:31 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KELLY  said  the  point  made  by  Representative                                                               
Gruenberg about the sovereign maintaining  the option of choosing                                                               
is not unusual  in the U.S.   He said, "It goes all  the way from                                                               
very restrictive in  the U.S. to actually quite  permissive."  He                                                               
reiterated  that  HB 103  would  not  take  away the  option  for                                                               
appeal.                                                                                                                         
                                                                                                                                
9:00:56 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  said the  legislature can  decide which                                                               
types of  cases a person  can sue the  state over and  whether or                                                               
not there will be a jury.   He said the national historical trend                                                               
has been to allow states to be sued  by jury trials.  He asked if                                                               
there are any other states  that Representative Kelly is aware of                                                               
that have  allowed a  jury trial  and then  taken away  that jury                                                               
trial after some time.                                                                                                          
                                                                                                                                
9:02:32 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLY said he doesn't know.                                                                                      
                                                                                                                                
9:02:45 AM                                                                                                                    
                                                                                                                                
MR.  HILYARD said  Article 2,  Section  21, in  the Alaska  State                                                               
Constitution notes that a few  state constitutions still prohibit                                                               
all suits against  the state.  He offered  some history regarding                                                               
the law in question.                                                                                                            
                                                                                                                                
9:04:22 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  indicated that  the case  involving the                                                               
university  [back in  1975] highlights  his  previous point  that                                                               
defendants often want juries.                                                                                                   
                                                                                                                                
9:04:52 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLY  urged the committee  to pass HB 103  out of                                                               
committee.                                                                                                                      
                                                                                                                                
9:05:00 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE ELKINS  moved to  report HB  103 out  of committee                                                               
with  individual  recommendations  and  the  accompanying  fiscal                                                               
notes.  There being no objection,  HB 103 was reported out of the                                                               
House State Affairs Standing Committee.                                                                                         
                                                                                                                                

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