Legislature(1993 - 1994)
01/26/1994 01:15 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
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HOUSE JUDICIARY STANDING COMMITTEE
January 26, 1994
1:15 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Pete Kott
Rep. Gail Phillips
Rep. Joe Green
Rep. Cliff Davidson
Rep. Jim Nordlund
MEMBERS ABSENT
Rep. Jeannette James, Vice Chair
OTHER LEGISLATORS PRESENT
Rep. Ed Willis
Rep. Bettye Davis
Rep. Al Vezey
COMMITTEE CALENDAR
SCR 4: Relating to the Alaska Supreme Court's
interpretation of Alaska Rule of Civil Procedure
82 and requesting that the court modify its
interpretation of that rule."
MOVED OUT OF COMMITTEE
HB 162: "An Act authorizing capital punishment,
classifying murder in the first degree as a
capital felony, and establishing sentencing
procedures for capital felonies; authorizing an
advisory vote on instituting capital punishment;
and providing for an effective date."
HEARD AND HELD
WITNESS REGISTER
KEVIN SULLIVAN, Legislative Aide
Senator Robin Taylor
Alaska State Legislature
State Capitol, Room 30
Juneau, Alaska 99801-1182
Phone: 465-3873
POSITION STATEMENT: Testified on behalf of Senator Robin
Taylor, Prime Sponsor of SCR 4.
RUSSELL HEATH, Executive Director
Alaska Environmental Lobby
P.O. Box 22151
Juneau, Alaska 99802
Phone: 463-3366
POSITION STATEMENT: Testified against SCR 4.
TROY REINHART
Alaska Forest Association
111 Steadman, #200
Ketchikan, Alaska 99901
Phone: 225-6114
POSITION STATEMENT: Testified in favor of SCR 4.
EMILY BARNETT
Trustees for Alaska
725 Christensen Dr.
Anchorage, Alaska
Phone: 276-4244
POSITION STATEMENT: Testified against SCR 4.
MARY A. NORDALE, President
Alaska Miners Association
P.O. Box 21211
Juneau, Alaska 99802
Phone: 586-3340
POSITION STATEMENT: Testified in favor of SCR 4
REP. JERRY SANDERS
Alaska State Legislature
State Capitol, Room 13
Juneau, Alaska 99811
Phone: 465-4945
POSITION STATEMENT: Prime Sponsor of HB 162
JERRY LUCKHAUPT
Legislative Legal Counsel
Legislative Affairs Agency
130 Seward Street
Juneau, Alaska 99801
Phone: 465-2450
POSITION STATEMENT: Drafted HB 162 and the Sponsor
Substitute
DEAN GUANELI
Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Phone: 465-3428
POSITION STATEMENT: Available to answer questions
BISHOP MICHAEL KENNY
Catholic Diocese of Juneau
419 Sixth Street
Juneau, Alaska 99801
Phone: 586-2227
POSITION STATEMENT: Testified against HB 162
TERRY BURRELL
P.O. Box 8
Anchorage, Alaska 99510
Phone: 563-4454
POSITION STATEMENT: Testified in favor of HB 162
(via teleconference)
MIKE WALLERI, Chief Counsel
Tanana Chief's Conference
129 - 1st Ave., Suite 600
Fairbanks, Alaska 99707
POSITION STATEMENT: Testified against HB 162
(via teleconference)
JANICE PRESTON
P.O. Box 394
Homer, Alaska 99603
POSITION STATEMENT: Testified in favor of HB 162
(via teleconference)
CHARLES CAMPBELL, Former Director
Department of Corrections
3020 Douglas Highway
Juneau, Alaska 99801
POSITION STATEMENT: Testified against HB 162
MARY S. SOLTIS
615 DeGroff
Sitka, Alaska 99835
POSITION STATEMENT: Testified against HB 162
(via teleconference)
RICH CURTNER, Attorney
24506 Teal Loop
Anchorage, Alaska 99567
POSITION STATEMENT: Testified against HB 162
(via teleconference)
PREVIOUS ACTION
BILL: SCR 4
SHORT TITLE: REQUEST CHANGE IN RULE 82 FEES
SPONSOR(S): SENATOR(S) TAYLOR
JRN-DATE JRN-PG ACTION
03/29/93 974 (S) READ THE FIRST TIME/REFERRAL(S)
03/29/93 974 (S) JUDICIARY
04/05/93 (S) JUD AT 01:30 PM BELTZ ROOM 211
04/06/93 (S) JUD AT 01:30 PM BELTZ ROOM 211
04/12/93 (S) JUD AT 01:30 PM BELTZ ROOM 211
04/12/93 (S) MINUTE(JUD)
04/12/93 (S) MINUTE(JUD)
04/13/93 1331 (S) JUD RPT 3DP 1NR
04/13/93 1331 (S) ZERO FISCAL NOTE (S.JUD)
04/14/93 (S) MINUTE(RLS)
04/16/93 1440 (S) RULES RPT 3CAL 1NR 4/16/93
04/16/93 1449 (S) READ THE SECOND TIME SCR 4
04/16/93 1449 (S) PASSED Y11 N9
04/16/93 1449 (S) DUNCAN NOTICE OF RECONSIDERATION
04/18/93 1462 (S) HELD ON RECONSIDERATION TO
4/19/93
04/19/93 1554 (S) RECONSIDERATION TAKEN UP
04/19/93 1554 (S) PASSED ON RECONSIDERATION Y11 N9
04/19/93 1555 (S) TRANSMITTED TO (H)
04/20/93 1346 (H) READ THE FIRST TIME/REFERRAL(S)
04/20/93 1346 (H) JUDICIARY
04/23/93 (H) JUD AT 01:30 PM CAPITOL 120
04/23/93 (H) MINUTE(JUD)
01/21/94 (H) JUD AT 01:15 PM CAPITOL 120
01/21/94 (H) MINUTE(JUD)
01/26/94 (H) JUD AT 01:15 PM CAPITOL 120
BILL: HB 162
SHORT TITLE: CAPITAL PUNISHMENT FOR MURDER
BILL VERSION: SSHB 162
SPONSOR(S): REPRESENTATIVE(S)
SANDERS,Olberg,Bunde,Kott,Vezey, James
JRN-DATE JRN-PG ACTION
02/18/93 380 (H) READ THE FIRST TIME/REFERRAL(S)
02/18/93 380 (H) JUDICIARY, FINANCE
02/22/93 421 (H) COSPONSOR(S): BUNDE
02/24/93 445 (H) COSPONSOR(S): KOTT
03/01/93 495 (H) COSPONSOR(S): VEZEY
03/02/93 510 (H) COSPONSOR(S): JAMES
11/16/93 (H) MINUTE(JUD)
11/16/93 (S) MINUTE(JUD)
01/19/94 2109 (H) SPONSOR SUBSTITUTE
INTRODUCED-REFERRALS
01/19/94 2109 (H) JUDICIARY, FINANCE
01/26/94 (H) JUD AT 01:15 PM CAPITOL 120
ACTION NARRATIVE
TAPE 94-9, SIDE A
Number 000
The House Judiciary Standing Committee was called to order
at 1:20 p.m. on January 26, 1994. A quorum was present.
Chairman Porter announced that the committee would address
SCR 4 first.
SCR 4 - REQUEST CHANGE IN RULE 82 FEES
Number 053
KEVIN SULLIVAN, legislative aide to Senator Robin Taylor,
Prime Sponsor of SCR 4, testified on behalf of the sponsor.
He read from a prepared sponsor statement, which stated the
purpose of this resolution is to petition the supreme court
to review the special status afforded public interest groups
in the award of attorney fees under Rule 82 of the Alaska
Rules of Civil Procedure. Mr. Sullivan said that for all
Alaskans, except special interest groups, Rule 82 provides
partial repayment of attorney fees to the prevailing party
by the losing party, and the rule is designed to discourage
frivolous litigation and tends to reduce the judicial
caseload as a result. He continued, saying the exception to
this rule is public interest litigation; and based on the
supreme court's exception for public interest litigants,
Rule 82 provides an economic incentive to various groups to
sue because full attorney fees are paid to the public
interest group if they prevail, and no attorney fees are
charged if it loses.
MR. SULLIVAN explained this raises a number of public policy
issues. He noted point number one: What is a public
interest that the court is protecting with this rule 82
exception? He gave an example and asked if it was really in
the public interest for environmental groups to sue to close
down businesses in Alaska. He continued with point number
two: How much of a legal subsidy is realized by these
groups and who pays for it? His third point asked if it was
good public policy to encourage litigation by groups the
supreme court has decided to favor, and how much does the
supreme court's policy cost the state of Alaska.
MR. SULLIVAN said certain groups are being encouraged to
litigate because the state is compelled by the court to
partially fund those groups with money from other Alaskans,
including appropriated funds from the state.
MR. SULLIVAN summarized, saying as Rule 82 is currently
interpreted by the court, certain parties are encouraged
with significant economic incentives to bring litigation
against the state. He asked whether the interest of the
public is truly being served by these public interest
parties, which is also at issue. He concluded, saying the
state is being directed to subsidize these questionable
public interest litigants at great expense to the public
itself, and SCR 4 encourages the supreme court to review
these issues.
Number 137
REP. NORDLUND said that SCR 4, in the resolves, seems to be
targeting those groups that somehow deal with or oppose mass
resource development in the state. He asked if it was
constitutional to target specific public interest groups.
Number 160
MR. SULLIVAN replied that "targeting" was perhaps a
different way of describing it, and the legislation lists a
name of a group as an example; and from a constitution
perspective it doesn't seem to particularly impact it.
MR. SULLIVAN went on to say that the court, through case
law, has come up with a determination on what is public
interest litigation, and SCR 4 is simply a resolution asking
the supreme court to review Rule 82 as it currently applies
to public interest litigants.
Number 192
REP. NORDLUND told the committee that it seems ridiculous to
state "groups founded to oppose natural resource
development" and ask if there are any environmental groups
that would state that as their mission.
Number 199
MR. SULLIVAN said he wasn't in a position to speak for what
environmental groups may say in their mission statements,
but that particular portion of the resolution is speaking to
historically what has been presented in the courts by
parties that were litigating specific situations in terms of
trying to impede or inhibit further resource development.
Number 208
REP. GREEN asked if an amendment might help Rep. Nordlund's
concerns and suggested different wording.
Number 218
REP. PORTER suggested it would be in the committee's best
interest to hear all the testimony before proposing
amendments.
Number 217
REP. DAVIDSON asked Mr. Sullivan if he could expand on which
litigant groups have gained significantly economic advantage
as a result of bringing public interest litigation.
Number 220
MR. SULLIVAN responded that the significant economic
incentive is the fact that as Rule 82 currently stands,
should the party lose they would not be obligated to pay for
the reasonable attorney costs of the defendant because they
are determined to be public interest litigants, so it is a
net savings in retrospect instead as opposed to up-front.
Number 254
REP. DAVIDSON asked Mr. Sullivan if from his perspective it
is an economic gain for the group.
Number 255
MR. SULLIVAN stated that should a case be brought, and it's
determined that the case is without merit, under current law
if the plaintiff was not determined to be a public interest
litigant, then that entity would be responsible for a
portion of the reasonable attorney fees of the defendant.
He said by being classified by the court as a public
interest litigant, they are not responsible for the payment
of those fees to the other party.
Number 279
REP. DAVIDSON said according to Mr. Sullivan's
interpretation, people bring litigation because they know
they can't win, but it will cost the people they are
bringing the litigation against.
Number 286
MR. SULLIVAN replied no, and said he is not asserting that
any litigant is bringing a claim which they know they can't
win; he's simply saying that public interest litigants, if
they lose, are not responsible for the fees of the other
party; therefore, that would enter into a decision on what
claims to pursue.
Number 303
RUSSELL HEATH, Executive Director, Alaska Environmental
Lobby, testified against SCR 4. He said the Alaska
Environmental Lobby is a coalition of twenty Alaskan
environmental groups, and his organization represents their
interests in the Alaska State Legislature. Mr. Heath
described the differences between a public interest lawsuit
and a private lawsuit, and said the vast majority of public
interest lawsuits are against state and local governments,
not against private individuals or corporations. He said
this is because there is no citizen suit provision in Alaska
statutes.
Number 509
TROY REINHART, Executive Director, Alaska Forest Association
(AFA), testified in favor of SCR 4. He said AFA believes
the current exception to Rule 82, which allows public
interest groups to file litigation without risk of paying
legal bills of those being sued, if they lose, only promotes
frivolous lawsuits. Mr. Reinhart said the current exception
to Rule 82 is bad public policy and must change, and if Rule
82 was changed, it would level the litigation playing field,
although it would still provide public access to the courts
for those seeking to settle disagreements and would also
ensure that so-called public interest groups cannot file
lawsuits against companies or individuals without at least
being confident of prevailing or being assessed court costs.
REP. DAVIDSON asked Mr. Reinhart if AFA subscribes to the
statement that was made in the sponsor's comments that the
supreme court favors a certain group over another.
Number 550
MR. REINHART answered that his concern is particularly with
environmental litigation that has been filed against his
industry, and AFA believes that the way the current
situation is set up, it's an unlevel playing field where
environmental groups have all of an upside and no downside,
and it actually does promote litigation.
Number 577
REP. NORDLUND reiterated that most of these lawsuits are
filed against government, and certainly they have an effect
on the timber industry. He asked Mr. Reinhart if by
supporting this resolution he realized that he is asking the
court to take away this exemption for all public interest
groups, including the League of Women Voters, National Rifle
Association, and so on.
Number 591
MR. REINHART responded that his interest in this bill, and
that of his organization, is on the environmental side and
that's why he was there to testify.
Number 595
EMILY BARNETT, Trustees for Alaska, testified against SCR 4,
saying that the resolution has nothing to do with attorneys
and everything to do with public rights and the integrity of
our nation's democratic processes.
Number 689
REP. PHILLIPS said it appears that Ms. Barnett questioned
the validity of the statement that the supreme court has
interpreted the Alaska Rule of Civil Procedure to allow
litigation organizations to recover full attorney fees.
Number 696
MS. BARNETT replied that she's not questioning that
statement, she's questioning language that would have you
believe it is solely environmental litigation firms that are
getting this privilege under Rule 82.
Number 713
MARY A. NORDALE, an attorney in private practice in Juneau
and President of the Alaska Miner's Association, testified
in support of SCR 4, saying SCR 4 requests the Alaska
Supreme Court to grant equity among litigants regardless of
which segment of the economy they represent when the
litigation challenges activities for which the state is
granted permits, that is permanent activities. Ms. Nordale
continued by saying that at the present time the Alaska
Supreme Court casts a protective cloak over those litigants
representing recreation and fishing interests against
litigants who represent other resource related interests.
Ms. Nordale stressed that this apparent preference of some
users over others is contrary to their concepts of equal
protection.
MS. NORDALE said the Alaska Miner's Association believes
that under Article 8, Section 1, all litigants involved in
the development of the state's resources, supporting or
opposing, have equal and constitutionally protected
interests and they should be treated equally.
Number 755
REP. DAVIDSON asked Ms. Nordale how many companies or
individuals in the mining community have had to suffer those
kinds of losses as a result of being up against this unequal
playing field.
Number 765
MS. NORDALE replied that there have been several hundred
miners injured substantially because of litigation. She
said one thing that is important to remember in a lot of
litigation relating to natural resources is that the law
firms that represent the so-called public interest groups
are law firms that are in the business of litigation and
solicit their own clients, and when they can find an
appropriate target client to act as a plaintiff in the case,
then they move forward with the case. Ms. Nordale said they
also use any victories they achieve as fundraising
mechanisms.
Number 785
REP. DAVIDSON asked if it was the court that determined if
litigation was public interest litigation.
Number 792
MS. NORDALE responded yes, and she thinks the court has so
narrowly construed the language public interest that SCR 4
can send a very powerful message to the court that it's time
it looked more broadly at the definition.
Number 797
REP. DAVIDSON asked Ms. Nordale to expand on "narrowly
construed."
Number 798
MS. NORDALE replied that primarily the groups that the
courts designate as public interest are those primarily
involved in recreation and occasionally fishing.
Number 801
REP. PHILLIPS observed that special interest groups run
massive, nationwide campaigns for membership based on the
sole fact that they are litigating this case against an
entity, and this is a significant financial impact, and this
is a significant judicial point the committee should be
considering.
REP. NORDLUND asked Ms. Nordale to clarify the point she was
making about comparing mining or timber companies, and the
interest of that company versus the interest of recreation
and fishing interests.
Number 814
MS. NORDALE said she's hoping she's making the case for
allowing mining, recreation, fishing, timber, and so on, all
to be treated equally as being in the public interest under
our constitution.
MS. NORDALE continued, saying often a litigation firm will
find a target plaintiff they can represent, a private entity
that would be put to the expense of defending themselves,
not so much to target that particular entity, but to test a
matter of public policy.
Number 830
REP. NORDLUND said that a vast majority of the cases are
environmental firms against the state or federal government.
Number 833
MS. NORDALE responded that it always involves a private
business as well, so it doesn't level the playing field.
Number 842
REP. PORTER asked what was the wish of the committee.
Number 850
REP. PHILLIPS moved to move SCR 4 out of committee with
individual recommendations.
Number 850
REP. NORDLUND cited his opposition to the bill, primarily
because of the way it was drafted in the "Whereas's."
Number 866
REP. DAVIDSON cited his opposition to SCR 4, and asked to
hear from the supreme court on this issue.
TAPE 94-9, SIDE B
Number 003
REP. PORTER indicated his support for SCR 4, and said he
believes the resolution is intended to be a reflection of
the result of the supreme court's actions and decisions
they've made. Rep. Porter said he intends to support the
measure because most of the testimony seems to presume that
the only access the public has is through costly litigation,
and that's just not the case. He cited several avenues
available to interested parties prior to having to litigate.
REP. PORTER also said he believes the advantage flows to
someone of a particular philosophy over someone else of a
particular philosophy, and equity-wise he doesn't believe
that's fair. He cited one of the unfairnesses as being that
public litigants do receive full compensation for attorney's
fees if they prevail, as opposed to any other litigant under
Rule 82 that would get something between twenty and thirty
percent.
REP. PORTER concluded by saying that responsible development
is in the public interest and this speaks against it, which
is why he is going to vote for SCR 4.
REP. PHILLIPS pointed out that not only is responsible
development of our natural resources in the best public
interest, it is also mandated in the constitution.
Number 084
REP. PORTER called for a roll call vote on the motion.
Rep. Green yes Rep. Kott yes
Rep. Nordlund no Rep. Phillips yes
Rep. Davidson no Rep. Porter yes
SCR 4 WAS MOVED FROM COMMITTEE WITH INDIVIDUAL
RECOMMENDATIONS.
HB 162 - CAPITAL PUNISHMENT FOR MURDER
Number 087
CHAIRMAN PORTER brought HB 162 to the table.
Number 110
REP. JERRY SANDERS, Prime Sponsor of HB 162, asked everyone
listening to testimony on this bill to keep in mind that
there are a few people who are not like those of us in this
room, and that it is hard to imagine these cold-blooded
predators who threatened our lives and our loved ones. He
said even when these people are in custody, they are a
threat to law enforcement and corrections officials, along
with the possibility they might escape and claim more
innocent victims.
Number 177
JERRY LUCKHAUPT, Legal Counsel, Division of Legal Services,
Legislative Affairs Agency, indicated that he was the bill
drafter for HB 162 and the Sponsor Substitute (SS), which is
basically identical to SB 127, the Senate version of HB 162.
He outlined the differences, the first being that the SS
lacks findings and does not ask for an election to seek the
death penalty, making it a permissible sentencing option.
Mr. Luckhaupt said the next difference relates to the
description of the jury finding mitigating or aggravating
factors. He said the final change is that the SS lacks
flagging Rules of Court, meaning the legislature must have a
two-thirds majority to change court rules, and the SS does
not require that vote.
MR. LUCKHAUPT continued by saying the SS is basically no
different in a substantive way than the original bill, and
the sponsor believes a two-thirds vote to change court rules
is not needed.
Number 337
REP. NORDLUND referred to the section of HB 162 that asks
the supreme court to expedite appeals, and noted it is not
in the SS. He added that the legislation is not dealing
with court rule changes up-front.
Number 369
MR. LUCKHAUPT responded that it is up to the legislature to
decide if they are making changes to court rules, and it
must decide if they are making substantive or procedural
changes.
Number 490
REP. NORDLUND said there seems to be a question of whether
it is constitutional.
Number 502
REP. PORTER asked Dean Guaneli from the Department of Law
for his input.
Number 510
DEAN GUANELI, Criminal Division, Department of Law, said he
was available to answer questions, and the committee had
heard from Mr. McNally in November when he explained the
administration's position in great detail.
Number 525
REP. PHILLIPS asked for a summary of the governor's
position.
Number 532
MR. GUANELI replied that rather than try to summarize a
fairly lengthy presentation, he suggested that he would have
the tape of the hearing transcribed and would make it
available for the committee to take a look at.
Number 539
REP. NORDLUND said he couldn't remember all of Mr. McNally's
testimony, but he thinks he mentioned prosecution needing
another tool for law enforcement. Rep. Nordlund pointed out
that the problem with the death penalty is that it is
inequitable, especially for the poor.
Number 576
REP. DAVIDSON asked Mr. Guaneli if this issue would be a
monetary-based system, and were there assurances that all
people charged with the death penalty would be given access
to good counsel.
Number 590
REP. PORTER said it is his understanding that in federal
death penalty cases, regardless of income, the defendant is
given two attorneys. He asked if there was anything in HB
162 similar to federal practice, and asked Mr. Guaneli if he
believes that would be the process in Alaska.
Number 598
MR. GUANELI responded that there is nothing in the bill that
directs that practice; however, something along those lines
would be a likely result in rules provided by the supreme
court. He directed the question to John Salemi from the
public defender's office.
Number 621
REP. BETTYE DAVIS testified against HB 162, expressing
concern about fairness, racism, cost, and possible mistakes
being made. She urged the committee to study the impact of
the death penalty on minorities. Rep. Davis concluded that
it would be a grave mistake to enact a death penalty.
Number 818
REP. NORDLUND cited statistics showing that the death
penalty is a racially biased system.
Number 841
REP. DAVIS also cited various statistics pertaining to the
percentage of minorities in jail, versus white prisoners.
Number 850
The committee and Rep. Davis discussed various statistical
information pertaining to the death penalty.
TAPE 94-10, SIDE A
Number 035
BISHOP MICHAEL KENNY testified against HB 162, and focused
on the practical issues, such as the effect on society in
general. Bishop Kenny said we need to look at better ways
to ensure public safety. He opposed the death penalty
because it is the ultimate form of violence done by the
state; it panders to baser instincts in each of us, and it
serves to further alienate and isolate those individuals on
the fringes of our society. He concluded, saying that the
death penalty creates a false sense of security in society.
Number 169
REP. PORTER asked for testimony from John Creighton in
Bethel and was informed he had left a written statement for
the record.
Number 202
TERRY BURRELL of Anchorage testified in support of HB 162.
Number 320
MIKE WALLERI, Chief Counsel for the Tanana Chief's
Conference, testified against HB 162 and said a
disproportionate number of those killed under the death
penalty would be Natives and other minorities. He cited
cultural factors that impact Natives, including that Natives
are more willing to confess to crimes. Mr. Walleri urged
the committee to hold a hearing on the racial impact of the
death penalty.
Number 476
JANICE PRESTON of Homer testified in favor of HB 162 and
said that we need more police protection and speedier
adjudications of criminal cases.
Number 662
CHARLES CAMPBELL, former Director of the Department of
Corrections, testified against HB 162, saying it is a
futile, senseless practice that has no deterrent value, and
is extremely costly.
Number 665
MARY S. SOLTIS of Sitka testified against HB 162 and said
the focus should be on life imprisonment without parole.
Number 711
RICH CURTNER, an attorney from Anchorage, testified against
HB 162. He cited his experience in death penalty cases
while he was practicing law in Ohio, and cited the cost and
emotional toll as reasons to oppose the death penalty.
Number 796
REP. PORTER concluded the hearing on HB 162 and stated his
intention to continue hearing the bill at the next meeting.
ADJOURNMENT
CHAIRMAN PORTER ADJOURNED the meeting at 4:55 p.m.
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