Legislature(2003 - 2004)
05/09/2003 02:10 PM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
May 09, 2003
2:10 PM
TAPE HFC 03 - 86, Side A
TAPE HFC 03 - 86, Side B
TAPE HFC 03 - 87, Side A
CALL TO ORDER
Co-Chair Williams called the House Finance Committee meeting
to order at 2:10 PM.
MEMBERS PRESENT
Representative John Harris, Co-Chair
Representative Bill Williams, Co-Chair
Representative Kevin Meyer, Vice-Chair
Representative Ethan Berkowitz
Representative Mike Chenault
Representative Richard Foster
Representative Mike Hawker
Representative Beth Kerttula
Representative Carl Moses
Representative Bill Stoltze
Representative Jim Whitaker
MEMBERS ABSENT
Representative Eric Croft
Representative Reggie Joule
ALSO PRESENT
Senator Gene Therriault; Representative Nancy Dahlstrom;
Representative Vic Kohring; Gary Carlson, Marathon Oil; John
Greely, Staff, Representative Reggie Joule; Ben Brown,
Alaska State Chamber of Commerce; Rex Shattuck, Staff,
Representative Nancy Dahlstrom; Zach Warmwick, Staff,
Senator Gene Therriault; Ben Brown, Alaska State Chamber of
Commerce; Robert Briggs, Staff Attorney, Disability Law
Center, Juneau.
PRESENT VIA TELECONFERENCE
Mark Meyers, Director, Division of Oil and Gas, Department
of Natural Resources; Chris Kennedy, Assistant Attorney
General, Department of Law; Eugene Rutland, Mechanical
Contractors, Fairbanks; Colin Maynard, APDC, Anchorage; Tadd
Owens, Resource Development; Dorin Hawxhurst, Anchorage;
Steve Borrell, Alaska Miners Association, Anchorage; Karl
Hanneman, Fairbanks Chamber of Commerce, Fairbanks; Chris
Kennedy, Assistant Attorney General, Department of Law.
SUMMARY
HB 145 "An Act relating to public interest litigants and
to attorney fees; and amending Rule 82, Alaska
Rules of Civil Procedure."
CS HB 145 (FIN) was heard and HELD in Committee
for further consideration.
HB 269 "An Act establishing the Safety Code Task Force;
and providing for an effective date."
CSHB 269 (FIN) was REPORTED out of Committee with
individual recommendations and three zero fiscal
notes: #1 from Department of Community and
Economic Development, and two new zero fiscal
notes, one from the Department of the Legislature
and one from the Department of Public Safety.
HCR 5 Establishing a task force to make recommendations
regarding a new design for the official seal of
the State of Alaska.
CS HCR 5 (FIN) was REPORTED out of Committee with
a "do pass" recommendation and one, amended fiscal
note from the Department of Legislature.
HOUSE CONCURRENT RESOLUTION NO. 5
Establishing a task force to make recommendations
regarding a new design for the official seal of the
State of Alaska.
JOHN GREELY, STAFF, REPRESENTATIVE REGGIE JOULE provided
information on the bill. He explained that the oldest
symbol in the state of Alaska was the official seal, created
in 1910, before the state legislature was in existence. He
referred to written testimony written by Representative
Joule, outlining the history of the seal's creation and its
symbolism. He noted that twelve other sponsors, along with
Representative Joule, sponsored the bill. A task force
would be formed to create a new design, which would
ultimately be voted upon by the legislature. He pointed out
that this was the second seal of the state of Alaska, the
first one included native and natural symbols, which was
then supplanted by the one created in 1910. He discussed
cities and industries that are part of modern Alaska and not
included in the seal. He pointed out that Governor Clark
had dropped Alaska Natives from the seal in 1910. He
suggested that the seal provided a learning opportunity for
people of all ages, as well as symbolizing our dream for the
future of the state of Alaska.
Co-Chair Williams noted discussions regarding seeking
funding for the $52 thousand fiscal note. Mr. Greely noted
that Representative Joule had contacted a number of
businesses to seek financial contributions for the cost of a
task force, and noted that they had received good feedback.
He pointed out that investors were hesitant until the wishes
of the legislature are known. He explained that the task
force would be a body of the legislature, although
administered by the Office of the Lieutenant Governor. The
task force includes members of the Alaska Historical
Commission, as the Lieutenant Governor is the Chairman of
this Commission. He concluded that the cost of the process
might be offset, but maintained that the legislature should
demonstrate their commitment to the project.
Representative Berkowitz referred to the Alaska Humanities
Forum and asked why they were no longer included. Mr.
Greely noted that the Forum had asked to be excused from the
actual task force due to other commitments, but offered
ideas for grants to support the project.
Co-Chair Harris observed that the task force included two
members from the Department of Education and Early
Development. Mr. Greely confirmed, in addition to two from
the Alaska Historical Commission and two from the Alaska
Heritage Center, there would be two from DEED. He explained
that the Department of Education and Early Development would
be brought into the process due to its potential benefit to
school children. He pointed out the opportunity to involve
children in the process, and to educate them on Alaska's
history. He suggested a web site that children could access
and submit their ideas. They believe the educational
process is a vital component.
Co-Chair Harris asked if the Pioneers of Alaska could take
the two positions vacated by the Humanities Forum. Mr.
Greely responded that this was a possibility if they were
interested in participating.
Representative Chenault pointed out an inconsistency in the
language of the fiscal note, referring to the number of
members on the task force. Mr. Greely explained that the
task force had six members, without the two positions from
the Humanities Forum.
Co-Chair Williams suggested that seeking sponsorship might
lower the fiscal note, while the state should retain some
responsibility. Co-Chair Harris observed that some of the
fiscal note pertained to staff and travel. He suggested
that they change the Range 21 position to Range 18, and
change the term to three months.
Co-Chair Williams noted that in discussions with
Representative Joule, the Sponsor had stated he'd like to
achieve the entire $52 thousand. Mr. Greely acknowledged
that lowering the fiscal note would set a parameter, and
that $33 thousand might be achievable.
Representative Hawker expressed his respect for the Sponsor
and intention of the bill. He also noted his concern over
adding even a small expenditure in a time when services were
being cut. He suggested that finding an alternate funding
mechanism would increase his support of the bill. He
suggested that since it was an opportunity to recognize the
Native community, regional corporations might be approached
for funding.
Mr. Greely confirmed that a major Native corporation
expressed an interest in helping, and the First Alaskans
Institute had committed help. The question is how much and
when. He suggested that if the legislature approved the
project with a minimum start up funding, it could more
easily garner private funds.
Co-Chair Williams reiterated that the fiscal note might read
$33 thousand in general funds, and then specify "other
funds" to meet the total. Mr. Greely noted that in order to
pass the bill, Legislative Council staff time was added over
and above the budget.
Co-Chair Harris recommended that in order to acknowledge
private funding the fiscal note be reconfigured.
Co-Chair Williams stated he'd like to lower the general fund
commitment to $33 thousand, with $20 thousand of "other
funding", and work with the Department to adjust the fiscal
note accordingly before taking action on the bill.
Representative Berkowitz MOVED to Amend the bill to delete
the Alaska Humanities Forum. There being NO OBJECTION, the
Amendment was ADOPTED.
Co-Chair Harris MOVED to Amend to add One Position for the
Pioneers of Alaska to the task force. There being NO
OBJECTION, the Amendment PASSED.
Representative Foster MOVED to report CS HCR 5 (FIN) out of
Committee with the accompanying AMENDED CONCEPTUAL fiscal
note.
There being NO OBJECTION, it was so ordered.
CS HCR 5 (FIN) was REPORTED out of Committee with a "do
pass" recommendation and one, amended fiscal note from the
Department of Legislature.
HOUSE BILL NO. 269
"An Act establishing the Safety Code Task Force; and
providing for an effective date."
REPRESENTATIVE NANCY DAHLSTROM, SPONSOR provided information
about the bill. She read from the sponsor statement as
follows:
There are five primary safety codes dealing with
construction in Alaska, all of which are under the
jurisdiction of two different Departments. The Fire,
Building and Mechanical Codes are under the
jurisdiction of the Fire Marshall at the Department of
Public Safety. The Plumbing and Electrical Codes are
governed by the Department of Labor. Each department
is responsible for adopting a family of codes that
bring uniformity and consistency to the construction
industry. However, the current delegation of authority
to the respective departments has caused a set of
conflicts and discrepancies.
The mission of the Safety Code Task Force is to suggest
options for consolidation of our code administration
function. The Task Force will be charged with
presenting recommendations to the legislature by the
first day of the Second Regular Session of the Twenty-
Third Alaska State Legislature.
The Safety Code Task force will consist of 9 members
representing parties affected by the adoption of Safety
Codes in the state. The makeup of the task force is as
follows:
A Senator (Co-Chair) appointed by the Senate
President,
A Representative (Co-Chair) appointed by the
Speaker of the House
A member of administration appointed by the
Governor
The following members are to be appointed jointly by
the Senate President and the Speaker of the House:
Representative of the construction design
community
Representative of the construction engineering
community
Representative for general contractors
Representative for mechanical contractors
Representative for electrical contractors
Representative for plumbing contractors
Additionally, the Governor will appoint an advisory
panel. The makeup of the panel will include
individuals from industry, organizations, and
Government. The purpose of this group is to advise the
Task Force on the effect of any changes in code to
their respective community.
Representative Dahlstrom pointed out that the advisory panel
would include representation from various state agencies.
She maintained that it was her intention to represent a
broad coalition.
Representative Foster observed that the representatives on
the task force did not include someone from the Bush area.
He explained that this area had different needs and
timeframes than urban areas. Representative Dahlstrom
maintained that the task force would be charged with
developing the uniform codes, and not actually performing
the inspections. Representative Foster reiterated that the
codes needed to be adapted for the entire state. Co-Chair
Williams maintained that the task force would address the
kinds of problems raised by Representative Foster.
ZACH WARWICK, STAFF, SENATOR GENE THERIAULT, stated that an
intention for the Task Force was achieving consistent code
requirements. He noted that the transition from the uniform
to the international code was not yet completed. He pointed
out that statute specified that an inspector must be trained
in the uniform code, yet contractors are being told to
operate under international code. He noted that there were
a variety of problems regarding administering codes in
statute and that a goal for the task force was to devise a
working document to address those problems.
Representative Berkowitz asked if, given existing statutory
confusion, the Task Force would then identify the points of
inconsistency in statute and communicate this with the
legislature. Mr. Warwick confirmed that this was one of the
three goals, in addition to suggesting a set of common codes
to adopt, and a method for administering them.
Representative Berkowitz suggested that legal research was
needed rather than a task force and that this might reduce
the cost of the project. Mr. Warwick speculated that the
statutory conflicts were so extensive as to require legal
advice.
Representative Stoltze voiced concern with cost issues. He
observed that many of the representatives had existing state
travel budgets, and that others have financial interest in a
solution. He suggested that private citizens be asked to
pay for their own expenses to participate, rather than be
subsidized by the legislature.
Co-Chair Williams noted that Co-Chair Harris was reviewing
the fiscal notes for possible revisions.
Representative Hawker asked whether this was an essential
service and a way to recover the investment. Representative
Dahlstrom stated that she would entertain an amendment to
the fiscal note allowing those parties to finance their own
travel costs.
Vice-Chair Meyer asked if Section (h), page 3, would need to
be amended, if the fiscal note were changed to zero, since
it states that task force members were entitled to per diem
and travel expenses.
Representative Kerttula noted that some of the
municipalities believe that there should be municipal
members on the task force, in particular a fire prevention
official. She asked if this might be acceptable.
Representative Dahlstrom noted that there had been
discussion on that concern and that it would be acceptable.
The fire official would need to be specified as a fire code
official. She also noted that having a municipal building
inspector would be a good addition.
Co-Chair Harris commented that under the advisory panel
there were a number of individuals, including fire code and
building inspectors, who would suggest recommendations. He
noted that he had carried this bill during other
legislatures, and observed that it was a difficult task to
resolve. He pointed out that both Anchorage and Fairbanks
had voted to accept particular codes, and emphasized the
confusion over how to implement the various codes.
Representative Stoltze referred to Title 29 and asked
whether the term "municipal" was too restricting, preventing
smaller areas from using this tool. He recommended using
the term "local" government instead.
Representative Dahlstrom commented that representation from
around the State was vital, and concurred that the term
"municipality" might be restrictive.
HB 269 was HEARD and HELD for further consideration.
HOUSE BILL NO. 145
"An Act relating to public interest litigants and
to attorney fees; and amending Rule 82, Alaska
Rules of Civil Procedure."
SENATOR GENE THERRIAULT, SPONSOR discussed the changes
contained in the Committee Substitute. He noted that his
staff worked to change language in response to testimony
heard in the Senate Resources Committee. The testimony
indicated that in some cases, the reforms suggested by the
bill were too broad. The Committee Substitute effectively
nullifies current doctrine, and recreates it in statute in
areas supported by public testimony.
Co-Chair Harris MOVED to ADOPT Committee Substitute 23-
GH1064\H, Luckhaupt, 5/8/03 as the version of the bill
before the Committee. Representative Berkowitz OBJECTED for
the purpose of discussion.
Senator Therriault referred to Section 1, pertaining to
Alaska court cases, which had lead to the establishment of a
doctrine. He noted that Section 2, (b) amends the language,
not allowing the court to discriminate in the awarding of
attorney fees "except as otherwise provided by statute".
Subsection (c) allows for some differentiation to be made,
allowing the doctrine to remain in force, in cases
"concerning the establishment, protection, or enforcement of
a right under the United State Constitution or the
Constitution of the state of Alaska". He explained that
Subsections (d) and (e) outline the award process.
Senator Therriault added that Section 3 (c) clarified that
litigants may not be excused for stays or interlocutory
relief. He observed that the language in Subsection (h)
clearly delineated what issue can and cannot be placed in
public interest litigant status. He noted that public
interest doctrine was not listed anywhere in adopted,
printed court rulings. He stated that the Administration
supports the language changes.
Representative Berkowitz emphasized that the new Committee
Substitute had been brought forward late [in the legislative
session] and wondered why there had not been prior notice,
since the new version contained such substantive changes.
Senator Therriault responded that the work had been
finalized in the early morning hours and that time was
limited.
Representative Berkowitz WITHDREW his OBJECTION. There
being NO OBJECTION, Committee Substitute 23-GH1064\H,
Luckhaupt, 5/8/03, was ADOPTED.
Co-Chair Harris asked if a public interest litigant would
liable for the legal fees on both sides of the case should
they lose a case. Senator Therriault observed that currently
litigants could enter suit in the hope that even a portion
of the suit would be found valid, and have the potential of
having attorneys fees paid. He maintained that there was no
"down side". He asserted that people use the court system
as a potential means of raising revenue. He stated that
other types of cases bore other risks.
Representative Berkowitz referred to legislative research on
public interest litigation in Alaska. He emphasized that
there was no personal gain to be arrived at by a public
interest litigant. He asked for the Sponsor's definition of
public interest litigant. Senator Therriault responded that
it was a class of litigants recognized by the court as
receiving special provisions that provide for the
possibility of having attorney fees covered if the case is
successful.
Representative Berkowitz observed that in order to achieve
that status, a litigant must satisfy certain requirements.
Senator Therriault noted that the bill proposed to restrict
those criteria to constitutional issues.
Representative Kerttula asked for clarification on which
cases would no longer be considered public interest
litigation. Senator Therriault observed that any cases
involving the denial of due process could apply for and
receive public interest litigant status, since this was a
constitutional right. In response to a question by
Representative Kerttula, Senator Therriault explained that
cases that made no constitutional claim could no longer be
considered for public interest litigant status.
Representative Berkowitz asked about the types of cases that
would be disallowed. Senator Therriault stated that a list
of specific cases had not been compiled.
TAPE HFC 03 - 86, Side B
Representative Berkowitz asked for a list of the kinds of
cases that might be included or disallowed under the bill.
CS HB 145 (FIN) was heard and HELD in Committee for further
consideration.
HOUSE BILL NO. 269
"An Act establishing the Safety Code Task Force; and
providing for an effective date."
EUGENE RUTLAND, MECHANICAL CONTRACTORS, FAIRBANKS, testified
via teleconference in support of the bill. He maintained
that regulations needed to be reviewed and revised. He
suggested that the task force would ensure that
recommendations and the code adoption process would have the
broad support of the construction community.
COLIN MAYNARD, APDC, ANCHORAGE, testified via teleconference
in support of the bill. He reviewed the history of the
current national building codes, which were written in 1991
and resulted in a uniform code. He noted that in 2000,
international codes were adopted. He pointed out that the
mechanical contractors organization jointly wrote the
uniform mechanical code, and continue to write this code.
In 2000, the state fire marshal adopted the building fire
mechanical code. The mechanical contractors would prefer to
have the uniform mechanical code written by their
organization and have been trying to overturn the fire
marshal's decision. They have joined forces with the
national fire protection association to write a building
code to compete with the international codes, for a total of
two national codes. He concluded that the reason for the
task force was to examine these two codes and decide which
aspects are most appropriate for the state of Alaska. He
noted that Anchorage and Fairbanks adopted the same code to
align with the state of Alaska. He pointed out that the
makeup of the task force had changed from what had been
recommended. He maintained that not having a building
official on the task force did not provide enough compliance
information, since contractors did not have the oversight of
the code.
Co-Chair Harris asked if there needed to be a municipal
official or if it could simply be a licensed inspector. Mr.
Maynard maintained that an inspector would not provide the
needed perspective. He contended that a municipal building
official was needed.
Co-Chair Harris asked if these officials would have a bias.
Mr. Maynard conceded that this might be the case.
ZACH WARMWICK, STAFF, SENATOR GENE THERRIAULT, noted that
municipal building inspectors were part of the body that
created the international code. He noted that the six
member task force would be appointed by the Senate President
and the Speaker of the House, and pointed out that the
effort was to create a task force which was as non biased as
possible.
Representative Kerttula observed that if there were only
eight people in the state that filled the criteria for being
a municipal building inspector, and asked if it could be
differently termed, since some areas were not
municipalities. Mr. Maynard pointed out that only eight
areas performed the planning that designated a building
official. He noted that smaller areas were under the
jurisdiction of the state fire marshal's office.
Public Testimony concluded.
Representative Kerttula MOVED Amendment #1.
Page 1, after line 6:
Delete "nine"
Insert "eleven"
Page 2, line 3:
Delete "and"
Page 2, line 4:
Delete "."
Insert ","
Page 2, after line 4:
Insert"(G) a municipal building official; and
(H) a municipal fire prevention official."
Page 2, lines 18 & 19:
Delete all text
Co-Chair Harris OBJECTED.
Representative Kerttula MOVED TO AMEND the language: change
"municipal" to "local".
Co-Chair Harris OBJECTED, and MOVED to Amend the AMENDMENT
to read "local building inspector" and "local fire code
official".
Representative Kerttula agreed that this language might be
more specific.
Vice-Chair Meyer questioned whether or not to enlarge the
task force. Representative Dahlstrom confirmed that they
originally included this number and stated that she would
like the list to remain the same.
Representative Stoltze raised concern about the restrictive
nature of the language in the amendment. Co-Chair Harris
pointed out that he was not in favor of the amendment.
Representative Kerttula disagreed with Co-Chair Harris
amendment to the amendment regarding "local building
inspector", based on earlier testimony.
Co-Chair Harris WITHDREW "local building inspector" from his
amendment to the amendment.
Co-Chair Williams OBJECTED to Amendment #1, as amended.
Representative Whitaker expressed support for the amendment.
He referenced his experience on the Fairbanks City Council.
He noted it was cumbersome not to have significant
cooperation between two sides of an issue. He expressed
concern that future problems would occur by not including
all parties on the task force.
Representative Kerttula acknowledged that it would be
helpful to involve building officials in the process.
Representative Dahlstrom reiterated that it was her
preference to keep the original wording in the bill. She
stated, however, that they could work with the amendment.
Co-Chair Williams spoke about his experience with the Fish
Task Force, and noted that eleven members was a large task
force.
Representative Whitaker proposed that the question was not
the number of members, but who was included. He maintained
that the building officials were the ones who would have to
implement the results of the task force ultimately. He
suggested that membership might be restricted to nine if
they included the building officials.
Co-Chair Williams asked where one might remove two members.
Co-Chair Harris suggested that the list would be
overbalanced. He noted that an official who had legal
authority would offset the balance of the task force. He
pointed out that the task force was not creating statute,
but proposing solutions. He noted that the legislature would
ultimately create the law, advised by the task force.
Representative Stoltze proposed that the amendment be
withdrawn since it had been amended extensively. He
suggested that another amendment be created.
There being NO OBJECTION, to the amendment to the amendment
it was so ordered. A roll call vote was taken on the motion
to adopt the amendment as adopted.
IN FAVOR: Berkowitz; Moses; Whitaker; Kerttula
OPPOSED: Hawker; Meyer; Stoltze; Chenault; Foster;
Williams; Harris
The MOTION FAILED (4-8).
Co-Chair Harris referred to the three fiscal notes. Co-
Chair Harris MOVED to zero out Fiscal Note #3 from the
Department of Public Safety. He also MOVED that language
allowing funding for task force travel and per diem be
AMENDED on Page 3, lines 11-13. There being NO OBJECTION, it
was so ordered.
Representative Foster MOVED to report CS HB 269 (FIN) out of
Committee with the accompanying amended fiscal notes.
Representative Berkowitz asked whether it was necessary to
point out that members of the task force were not eligible
for compensation. After some discussion, it was clarified
that it was not necessary to delete the section previously
referenced.
Co-Chair Harris clarified his AMENDMENT on the bill to only
remove the language "but are entitled to per diem and travel
. . . .AS.39.20.180".
After further discussion from Representative Meyer regarding
state compensation, Co-Chair Harris once again MOVED to
delete lines 11 to 13 on page 3. There being NO OBJECTION,
it was so ordered.
Representative Foster MOVED to report CSHB 269 (FIN) out of
Committee with individual recommendations and the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CSHB 269 (FIN) was REPORTED out of Committee with individual
recommendations and three zero fiscal notes: #1 from
Department of Community and Economic Development, and two
new fiscal notes, one from the Legislature and one from the
Department of Public Safety.
HOUSE BILL NO. 145
"An Act relating to public interest litigants and
to attorney fees; and amending Rule 82, Alaska
Rules of Civil Procedure."
TADD OWENS, RESOURCE DEVELOPMENT COUNCIL, testified via
teleconference in support of the bill. He explained that
his group is a non-profit trade association representing
individuals and companies from the oil and gas, timber,
mining, tourism and fisheries industries. He pointed out
that Alaska must provide a business environment that
encourages investment and suggested that the bill addressed
the risk associated with potential litigation against
companies. He maintained that Alaska did not currently
provide a level playing field in this area as compared to
other states. He suggested that the bill prevents
discrimination in awarding fees, and prevents courts from
waiving the bond requirements when an individual seeks to
stop a development project. He noted that the bill still
supports public interest litigation in constitutional
matters.
Representative Berkowitz cited changing circumstances as the
reason for enacting lasting court rules. He suggested that
the ability to change rules was actually more supportive of
development, and asked if the bill inhibits the ability of
groups to try to change public rules. Mr. Owens maintained
that the legislation does not amend a court rule, and
suggested that the legislature was the proper place to enact
public policy changes.
Representative Berkowitz proposed that the true problem from
the private perspective was the prohibitive costs of delays
in litigation. He asked if expedited hearings might better
serve both parties. Mr. Owens concurred that there may be
additional ways to continue reform of the process, but
reiterated that the legislation drew what they viewed as
appropriate distinctions.
Representative Berkowitz persisted that it was the delays
resulting from court cases that were prohibitive. He
reiterated that the best approach was an expedited hearing
process. Mr. Owens observed that the bill did not prevent
litigants from bringing suits, but only changed the economic
circumstances and possibility of state support.
DORIN HAWXHURST, ANCHORAGE testified via teleconference in
opposition to the bill. She described a situation that
occurred during her experience with Cordova District
Fisherman United (CDFU), during which she participated with
public interest litigants in the Prince Williams Sound
Tanker Plan appeal. She stated that the issue was whether
the Department of Environmental Conservation had implemented
the law that the legislature enacted after the Exxon Valdez
oil spill. She noted that the law required oil shippers to
have additional equipment to ensure that oil spills like the
Exxon Valdez spill would not occur again. She maintained
that CDFU entered the process since the Department of
Environmental Conservation ignored HB 567 under pressure
from the oil shippers. She discussed the difficult nature of
these proceedings, and noted that the administrative appeal
was prohibitively expensive to continue. She stated that
the city of Cordova could no longer participate in what they
termed "an unbearably expensive process", and that later the
Department of Environmental Conservation held hearings that
were heavily attended by fishers. She urged the Committee
to closely examine the case as a reason to continue public
litigant proceedings in the state of Alaska. She explained
that the individuals who brought these litigations could not
afford lengthy legal processes. She asked the Committee not
to pass the bill in protection of individuals.
TAPE HFC 03 - 87, Side A
STEVE BORRELL, ALASKA MINERS ASSOCIATION, ANCHORAGE
testified in support of the bill. He stated that the bill
provided needed streamlining of the permitting process. He
maintained that it was essential to ensure that when permits
were issued, there was no longer a financial incentive for
third parties to challenge permits.
Representative Berkowitz asked how much attention had been
given to find a way to expedite the process in order to cut
costs incurred while waiting for disputes to be resolved.
Mr. Borrell maintained that Alaska had a reputation as a bad
place to do business and suggested that this legislation
made the state more attractive to investors.
Representative Berkowitz contended that private suit
litigation was not really the culprit in discouraging
business, but rather the length of the hearing process. He
suggested that the best thing to attract business to Alaska
was to streamline the litigation process.
KARL HANNEMAN, FAIRBANKS CHAMBER OF COMMERCE, FAIRBANKS
testified via teleconference in support of the bill. He
noted that many organizations had helped craft the language
of the bill. He pointed out that the language was
supported by the Administration. He noted the significance
of the legislation to the Northern Interior, where projects
had been delayed due to litigation, affecting the overall
economy of Fairbanks.
CHRIS KENNEDY, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW
testified via teleconference and provided information about
the bill. He explained that the current Committee
Substitute was an integral part of the Governor's
legislative package to streamline the permitting process for
resource development. He noted that it limits the
application of a court doctrine in areas where it has
encouraged exceptive and speculative litigation. He stated
that the bill addressed public interest litigants, as
defined by the Supreme Court, as one who: 1) defined public
policy; 2) effect numerous people; 3) could only be brought
by a private party; and 4) could not be a self appointed
public advocate. He pointed out that currently litigants
could have their attorney's fees paid even if they lost
their case, if the changes they advocate are adopted by some
other means. He maintained that a public interest law firm
could make money if they won and gave such an example. He
contended that the current statute provided an unintended
subsidy for public interest litigants. He stated that those
seeking to challenge or obstruct tort development were
different from ordinary litigants, since they have an
incentive to take the chance on doubtful claims as the
downside risk is removed and the potential reward enhanced.
Mr. Kennedy gave an example of misuse of public interest
litigation in a five-year suit against the Department of
Environmental Conservation regarding the 1995 Prince
Williams Sound Tanker Contingency plan. He recounted the
story from earlier testimony from a different perspective,
and noted that changes occurred during the lengthy hearing
process to address fishers' concerns. He emphasized that
CDFU was accommodated without litigation. However,
following the process, an individual from Washington who was
not satisfied led a massive court challenge containing 85
separate issues. Ultimately 54 issues were abandoned, 31
were briefed, and none prevailed. The case cost the State
$154 thousand dollars, with a possibly greater cost to
private parties. The individual who brought the 85
unsuccessful challenges was immune from paying any Rule 82
fee awards to either the State or shippers. He conceded
that HB 145 would not do away with that type of litigation
entirely. However, it will abolish public interest litigant
doctrine in certain areas and, by evening out the risks and
benefits of bringing claims, will force people opposed to
permits or plans to more carefully evaluate whether they
pursue more speculative challenges.
BEN BROWN, ALASKA STATE CHAMBER OF COMMERCE, testified in
support of the legislation. He stated that their members
want to promote Alaska's healthy economy by preventing
misuse of the State's instrumentalities to impede resource
development. He recommended the approach contained in the
th
Committee Substitute. He clarified that the 4 party of the
existing doctrine did not require that the public interest
litigant have no economic incentive, but only that the
economic incentive be less than the non-economic incentive.
He also speculated that, regarding the Cordova case, given
the requirement in the current doctrine for a non-
governmental entity, the litigants might have actually
benefited from the city of Cordova withdrawing from the
case. He explained that the previous version of the bill
addressed three specific State Departments, whereas the
current bill version examines the nature of the claim being
brought. He suggested that this was the most germane issue,
given the importance of the claims. He suggested that under
the legislation, important claims would still be brought, as
well as lesser claims. He pointed out that Alaska still has
Rule 82 that allows for parties to recover some, but not
all, of their legal fees from another party when they
prevail. He referred members to a study of the Alaska
Judicial Council from 1995 giving the history of this Rule.
He maintained that, because of Rule 82, the courthouse doors
would not be "closed", but pointed out that litigants will
still have to face the risk of having to pay the other
party's fees if they do not prevail. He concluded that this
creates a "level playing field" in the area of public
interest litigation.
LARRY HOULE, THE SUPPORT INDUSTRY ALLIANCE, JUNEAU,
testified in support of the bill. He read from prepared
testimony (copy on file). He explained that they are a
statewide trade association of union and non-union
contractors. He read from prepared testimony, discussing
the history of Alaska Civil Procedure allowances to allow a
prevailing party in a civil lawsuit to recover a portion of
their attorney's fees. He differentiated this from the
Alaska Supreme Court Public Interest Litigant Doctrine
enacted in 1968, which allows a prevailing public interest
litigant to recover all of its attorney's fees. He
contrasted this to oil, logging or trucking companies or
labor unions that are consistently denied public interest
litigation status on the ground that they had "sufficient
economic incentive to bring a lawsuit". He concluded that
the current doctrine results in certain groups receiving
preferential treatment in the courts, which he claimed
reflected a "very marked and distinct anti-development, pro-
preservationist political slant". He maintained that the
bill would eliminate special treatment, and noted that Rule
82 of the civil rules of procedure would still permit a
trial judge to adjust awards of attorney's fees based on a
variety of factors for all litigants.
RICH HEIG, GREENS CREEK, AND COUNCIL OF ALASKA PRODUCERS
testified in support of the Committee Substitute. He noted
that the Council was an organization representing mining
companies in Alaska. He noted that his industry underwent
extensive permitting processes with the state, federal and
local governments. He noted that the process included
public hearing and comment opportunities and an
administrative review process. He noted that the process
could take several years to complete and pointed out that
the process could be extended by legal challenges against
the permits. He confirmed that a large part of the issue
was the delay in the process. He stated that challenges
could come from well-funded organizations, which were well
versed in the permitting processes. He maintained that fees
could be recovered from the organizations, especially if the
litigation was successful. He acknowledged that
Representative Berkowitz's comments regarding the length of
the hearing process were correct, but pointed out that these
issues were already being addressed by the resource
industry.
ROBERT BRIGGS, STAFF ATTORNEY, DISABILITY LAW CENTER, JUNEAU
testified in opposition to the Committee Substitute. He
noted that every state receives federal monies in order to
set up advocacy programs for the disabled that are
independent from the State. He pointed out that many states
followed the Alaskan model, which uses a non-profit
organization to address litigation for the disabled. He
explained that his organization served exclusively the
disabled in Alaska. He noted that many of these individuals
had suffered a range of abuses and neglect, and explained
that the ultimate way for a citizen to address these
complaints was to file suit. He stated that many of these
individuals were very impoverished due to their conditions
and thus were not able to pay for litigation. He described
his history of law practice both in private and public
practice and observed the power of the State.
Mr. Briggs stated that the Committee Substitute greatly
expanded the impact of the bill, and pointed out that he did
not testify against the original bill. He emphasized that
any challenge brought by a citizen against any government
action was now contained in this bill, and stated that the
bill prevented the State from applying public interest
litigation doctrine to any of these cases. He urged the
Committee not to pass the bill, and to consider its broad
impact on public interest doctrine and on the applicable
Court Rule.
Mr. Briggs expressed his opinion that the Supreme Court
could issue a decision by any of three means: a codified
rule, a Supreme Court Order, or announcing a rule through
judicial opinion. He explained that public interest
doctrine is comprised of a series of court rulings. He
noted his successful experience in representing the disabled
in litigation, and noted that the rates of disability in
Alaska was high due to the nature of Alaskan industries. He
speculated that the bill would drive plaintiffs in public
interest litigation into federal court. He emphasized the
negative effect on private individuals who stand to lose
their entire life savings if they lose public interest
suits. He noted that the Juneau School District employed
the most expensive attorneys available, putting families at
a disadvantage. He maintained that the legislation would
prevent individuals from filing suit in state courts.
Mr. Briggs referred to Senate Concurrent Resolution #4,
th
passed during the 18 Legislature, urging the Alaska Supreme
Court to reexamine the wisdom of Civil Rule 82. He noted
that the Alaska Supreme Court issued a ruling, which
included an extensive study of the Rule. He noted that
nowhere in the study was the conclusion that the Rule had an
unfair effect. He pointed out that the majority of those
benefiting from public interest litigations were not from
environmental groups. He noted that the past testimony
would indicate otherwise, in its emphasis on the effects of
public interest doctrine on development of natural resources
in the State. He clarified that roughly 16 percent of
awards in state litigation have gone to environmental
groups. He suggested that there was not a basis to overturn
the Rule, which he maintained was the net effect of the
bill. He noted that this was in relation to awarded monies,
which were legitimate claims. He suggested that an entire
doctrine should not be thrown out as a result of 16 percent
of the litigation. He proposed that the original bill was a
more defendable doctrine and suggested that the legislature
consider this as an interpretation of a court rule.
Mr. Briggs read from a United States Supreme Court Case,
Legal Services Corporation vs. Velaskes, "Interpretation of
the law and the Constitution is the primary mission of the
judiciary when it acts within the sphere of its authority to
resolve a case of controversy. An informed, independent
judiciary presumes an informed independent bar. Simply to
prohibit the analysis of certain legal issues, and to
truncate presentation to the courts, prohibits speech, an
expression upon which the courts must depend for the proper
exercise of judicial power. Congress cannot wrest the law
from the Constitution which is its source." He urged
Members to adopt the original form of the bill as having
fewer legal defects than the Committee Substitute.
Vice Chair Meyer clarified that the Disability Law Center
preferred the Senate Judiciary version of the Bill.
Public Testimony on HB 145 was concluded.
CSHB 145 (FIN) was heard and HELD in Committee for further
consideration.
ADJOURNMENT
The meeting was adjourned at 4:42 PM
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